FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The College Crescent Case) [2020] FCA 757
ORDERS
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant | ||
AND: | CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent MARIO RASPUDIC Second Respondent MARK TRAVERS Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The name of the first respondent be changed to Construction, Forestry, Maritime, Mining and Energy Union.
2. The first respondent pay pecuniary penalties totalling $110,000.00.
3. The second respondent pay pecuniary penalties totalling $7,500.00.
4. The third respondent pay a pecuniary penalty of $6,000.00.
5. The penalties referred to in order 2 above be paid to the Commonwealth within 28 days.
6. The penalties referred to in orders 3 and 4 above be paid to the Commonwealth within 60 days.
7. The second respondent pay the penalties in order 3 above personally, in that he not, whether before or after the payment of the penalties:
(a) seek to have, or to encourage that, the first respondent, in any way whatsoever, directly or indirectly, pay to him or for his financial benefit, in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part; and
(b) accept or receive from the first respondent, in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part.
8. The third respondent pay the penalty in order 4 above personally, in that he not, whether before or after the payment of the penalty:
(a) seek to have, or to encourage that, the first respondent, in any way whatsoever, directly or indirectly, pay to him or for his financial benefit, in any way whatsoever, any money or financial benefit referable to the payment of the penalty, whether in whole or in part; and
(b) accept or receive from the first respondent, in any way whatsoever, any money or financial benefit referable to the payment of the penalty, whether in whole or in part.
9. The second and third respondent each have liberty to apply to the court, within 30 days of these orders, for an order extending the deadline referred to in order 6 above (insofar as it applies to him).
10. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SNADEN J:
1 The applicant (hereafter, the “Commissioner”) is the holder of a statutory office created by s 15 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (hereafter, the “BCI(IP) Act”). He has standing to prosecute the present action. It concerns conduct that took place in March and May of 2016 at a building construction site located at 40 College Crescent, University College, in Parkville, Victoria. That site (hereafter, the “Site”) was occupied by, or otherwise under the control of, Contract Control Services Pty Ltd (“CC Services”). CC Services was retained as the principal contractor in charge of a building project known as University College Master Plan Stage 1 (hereafter, the “Project”).
2 The second respondent (“Raspudic”) was, at the relevant times, a CC Services employee who worked at the Site in connection with the Project. As well as being a member of the first respondent (hereafter, the “Union”), he was also a Union delegate at the Site. The third respondent (“Travers”) was, at the relevant times, an employed official of the Union’s.
3 The Union is a large and well-known trade union. It is registered as an “organisation” under the Fair Work (Registered Organisations) Act 2009 (Cth). Broadly speaking, it represents and seeks to advance the industrial interests of (amongst others) employees who perform work in the construction industry. For the purposes of the Fair Work Act 2009 (Cth) (the “FW Act”), it qualifies as an “industrial association”: FW Act, s 12.
4 Given the nature of the Project, each of the respondents qualifies for present purposes as a building industry participant (within the meaning attributed to that phrase by s 5 of the BCI(IP) Act).
5 At approximately 7:00am on Tuesday, 1 March 2016, three employees of ACA Rigging and Crane Hire (Vic) Pty Ltd (“ACA Rigging”)—Mr Neville Bernaldo (“Bernaldo”), Mr Philip Pragnell (“Pragnell”) and Mr Steven Cullen (“Cullen”)—attended for work at the Site. ACA Rigging had been engaged to undertake various works at the Site in connection with the Project. It was subcontracted to that end by Tali Engineering Pty Ltd, which in turn was engaged by CC Services.
6 Upon their arrival at the Site on 1 March 2016, Bernaldo, Pragnell and Cullen met with Raspudic. The purpose of that meeting was to induct Bernaldo, Pragnell and Cullen to the Site. Site inductions are a common and well-known practice at commercial construction projects in Victoria. Typically, as in this case, they are conducted by an employee of the principal contractor. Often, that person is also a delegate or official of the Union.
7 During the course of the induction that occurred on 1 March 2016, Raspudic asked Bernaldo, Pragnell and Cullen whether they were members of the Union. Cullen said that he was and produced a membership card to verify as much. Bernaldo was not a Union member. Pragnell was a “non-financial” Union member.
8 Having received those indications, Raspudic told the trio that Cullen was permitted to venture onto the Site and perform his work but that Bernaldo and Pragnell were not. Raspudic indicated that he would not permit ACA Rigging employees to work at the Site unless they were members of the Union. He told Pragnell that, until he (Pragnell) paid money to the Union to address his “non-financial” membership status, he could not work at the Site. He told Bernaldo that he (Bernaldo) would not be permitted to work at the Site unless or until he joined the Union.
9 Bernaldo did not take steps on 1 March 2016 to join the Union. Pragnell did not take any steps on 1 March 2016 to address his “non-financial” membership status. True to his word, Raspudic “did not allow Bernaldo or Pragnell to commence work on the Site” on 1 March 2016. He did so because neither Bernaldo nor Pragnell were members of the Union. His intent was to give them no practical choice but to join.
10 At some point that morning, after the induction meeting had completed, Raspudic and Bernaldo had another conversation in the Site lunch room. Raspudic told Bernaldo that he should leave the Site. Bernaldo responded with words to the effect of, “I don’t have to become a member of the union”, to which Raspudic replied, “No, you have to be,” or words to that effect. There then followed a brief scuffle between them. Raspudic grabbed at a laptop that Bernaldo was carrying and attempted to pull it from his (Bernaldo’s) grasp. Bernaldo and Pragnell left the Site at approximately 1:00pm that afternoon.
11 On the following day, Bernaldo and Pragnell again attended at the Site. Pragnell proceeded to pay—to whom, specifically, is neither known nor significant—a membership fee to the Union, following which he approached Raspudic and told him that his Union membership was “fixed up”. At approximately 12:00pm on that day (2 March 2016), Bernaldo became a member of the Union as well. It appears that, having attended to the concerns with their Union membership that Raspudic had identified the previous day, both Bernaldo and Pragnell proceeded to perform their work at the Site.
12 That work was covered by an enterprise agreement made pursuant to pt 2-4 of the FW Act, specifically the ACA Rigging and Crane Hire (Vic) Pty Ltd Enterprise Agreement 2015 (the “ACA Rigging EA”). In the months following the Site induction referred to above, that instrument appears to have caught the attention of the Union. The terms of the ACA Rigging EA differed from those favoured by the Union, particularly insofar as concerned the rates of pay that it mandated.
13 On 26 May 2016, that reality was brought unambiguously to Bernaldo’s attention. After he arrived at the Site for work on that day, he was approached by Raspudic and Travers. Travers told Bernaldo that the Site was “a union site” and that ACA Rigging was required to pay its employees “union rates”. It is apparent enough that he was expressing some degree of concern or displeasure that the rates of pay that ACA Rigging was paying to its employees at the Site were less than the “union rates” that Travers felt were appropriate.
14 Travers’s statement was a threat: he intended to indicate to Bernaldo (and Bernaldo understood him to be indicating) that, unless ACA Rigging agreed to pay its employees more than it had been, Travers and the Union would take action to prevent ACA Rigging from continuing to perform its work at the Site. Travers’s intent was to give ACA Rigging no practical choice but to comply with his demand that it pay “union rates” to its employees at the Site. ACA Rigging promptly complied with Travers’s demand.
15 By this proceeding, the Commissioner alleges that Raspudic twice contravened each of ss 346 and 348 of the FW Act when he prevented Bernaldo and Pragnell from working at the Site on Tuesday, 1 March 2016. Raspudic concedes those contraventions. The Union concedes that, when he prevented Bernaldo and Pragnell from working at the Site on 1 March 2016, Raspudic did so as its delegate and/or officer, such that it is taken to have engaged in the same conduct for the same reason or reasons. That being so, it concedes that it, too, committed the same contraventions.
16 The Commissioner also alleges that Travers contravened s 348 of the FW Act on Thursday, 26 May 2016 when he threatened to take action to prevent ACA Rigging from continuing to perform its work at the Site. Travers concedes that he did so. The Union concedes that he did so in his capacity as its officer or official, such that it is taken to have engaged in the same conduct for the same reason or reasons. That being so, it concedes that it, too, committed the same contravention.
17 The facts and conclusions summarised above emerge without controversy from the parties’ pleadings. On the strength of them, the court is satisfied that the respondents committed the statutory contraventions that the Commissioner attributes to them, specifically that:
(1) by preventing Bernaldo from performing work at the Site on Tuesday, 1 March 2016—and by doing so because Bernaldo was not a Union member—Raspudic contravened s 346 of the FW Act;
(2) by preventing Pragnell from performing work at the Site on Tuesday, 1 March 2016—and by doing so because Pragnell was not a Union member—Raspudic contravened s 346 of the FW Act;
(3) by preventing Bernaldo from performing work at the Site on Tuesday, 1 March 2016—and by doing so with intent to coerce Bernaldo into joining and/or paying money to the Union—Raspudic contravened s 348 of the FW Act;
(4) by preventing Pragnell from performing work at the Site on Tuesday, 1 March 2016—and by doing so with intent to coerce Pragnell into joining and/or paying money to the Union—Raspudic contravened s 348 of the FW Act;
(5) by preventing Bernaldo from performing work at the Site on Tuesday, 1 March 2016—and by doing so because Bernaldo was not a Union member—the Union contravened s 346 of the FW Act;
(6) by preventing Pragnell from performing work at the Site on Tuesday, 1 March 2016—and by doing so because Pragnell was not a Union member—the Union contravened s 346 of the FW Act;
(7) by preventing Bernaldo from performing work at the Site on Tuesday, 1 March 2016—and by doing so with intent to coerce Bernaldo into joining and/or paying money to the Union—the Union contravened s 348 of the FW Act;
(8) by preventing Pragnell from performing work at the Site on Tuesday, 1 March 2016—and by doing so with intent to coerce Pragnell into joining and/or paying money to the Union—the Union contravened s 348 of the FW Act;
(9) by threatening to take action to prevent ACA Rigging from continuing to perform work at the Site—and by doing so with intent to coerce ACA Rigging into complying with a demand that it pay its employees at the Site “union rates”—Travers contravened s 348 of the FW Act; and
(10) by threatening to take action to prevent ACA Rigging from continuing to perform work at the Site—and by doing so with intent to coerce ACA Rigging into complying with a demand that it pay its employees at the Site “union rates”—the Union contravened s 348 of the FW Act.
18 By his further amended originating application of 22 August 2019, the Commissioner seeks relief in the nature of declarations, penalties and ancillary orders in respect of the statutory contraventions referred to in the preceding paragraph (hereafter, the “Agreed Contraventions”).
The applicable Statutory framework
19 Part 3-1 of the FW Act is (and, at relevant times, was) entitled “general protections”. Its objects include (and included) the protection of:
…freedom of association by ensuring that persons are:
(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities[.]
(See: FW Act, s 336(1)(b))
20 Section 346 of the FW Act provides (and, at relevant times, provided) as follows:
346 Protection
A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
Note: This section is a civil remedy provision (see Part 4-1).
21 Section 342(1) of the FW Act identifies (and, at relevant times, identified) the circumstances in which a person is considered to have taken “adverse action” against another person. Relevantly, an “industrial association”, or an “officer” or “member” of an industrial association, will be understood to have taken adverse action against another person if he, she or it does or threatens to:
(1) organise or take industrial action against the person;
(2) take action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or
(3) if the person is an independent contractor—take action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services.
22 At the relevant times, Raspudic and Travers were each “officer[s]” of the Union (within the meaning attributed to that term by s 12 of the FW Act).
23 Section 347 of the FW Act identifies circumstances in which a person “engages in industrial activity”. Relevantly, a person will so by becoming a member of an industrial association (s 347(a)), by not complying with a lawful request made by an industrial association (s 347(b)(iv)), or by not paying a fee (howsoever described) to an industrial association (s 347(b)(vi)).
24 Section 348 of the FW Act provides (and, at relevant times, provided) as follows:
348 Coercion
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.
Note: This section is a civil remedy provision (see Part 4-1).
25 Section 363(1) of the FW Act attributes to industrial associations, for the purposes of pt 3-1 of the FW Act (and subject to exclusions not presently relevant), conduct in which their officers engage, within their authority as such. Section 363(3) of the FW Act provides for the attribution to industrial associations of certain states of mind. It provides (and, at relevant times, provided) as follows:
363 Actions of industrial associations
…
(3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:
(a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and
(b) that the person, or a person in the group, had that state of mind.
26 Section 793 of the FW Act has an effect similar to that of ss 363(1) and (3) (albeit that that effect is not constrained to pt 3-1 of the FW Act). It provides (and, at relevant times, provided) as follows:
793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
27 Sections 346 and 348 of the FW Act are “civil remedy provisions”: FW Act, s 539(1). This court is empowered to “…make any order the court considers appropriate if the court is satisfied that a person has contravened…a civil remedy provision”: FW Act, s 545(1). Amongst other remedies, the court may “…order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision”: FW Act, s 546(1). That latter power is constrained by s 546(2) of the FW Act, which provides (and, at relevant times, provided):
(2) The pecuniary penalty must not be more than:
(a) if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or
(b) if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
28 In the case of each of ss 346 and 348, “column 4 of the table in subsection 539(2) [of the FW Act]” stipulates a maximum of 60 penalty units. At the time that the Agreed Contraventions took place, the value of a penalty unit was $180.00: Crimes Act 1914 (Cth), s 4AA(1) (as amended by the Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth), item 2 of sch 1).
29 Section 556 of the FW Act assumes some significance in the present matter. It provides (and, at relevant times, provided) as follows:
556 Civil double jeopardy
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
Note: A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a pecuniary penalty order in relation to that conduct (see subsection 546(5)).
Pecuniary penalties
General principles
30 The maximum penalty that can be imposed upon each of Raspudic and Travers in respect of each of the Agreed Contraventions to which he admits is $10,800.00. The maximum that can be imposed upon the Union in respect of each of its Agreed Contraventions is $54,000.00.
31 It is common ground between the parties that the court should impose pecuniary penalties in respect of the Agreed Contraventions. There are, perhaps unsurprisingly, diverging views as to what those penalties should be. The Commissioner contends that Agreed Contraventions committed by Raspudic and Travers should attract “moderate to high” penalties, and that those committed by the Union warrant penalties “at or near the top of the available scale”. The respondents contend that penalties “at the lower end of the spectrum” are appropriate.
32 In determining what penalties are appropriate in the present case, the court’s discretion is very broad: A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466, [6] (Gyles J). The task of assessing what amount to impose is one of “instinctive synthesis” that involves the selection of a figure that takes due account of all factors relevant to the particular case: Wong v The Queen (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen (2005) 228 CLR 357, 373-375 [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68, 84 [55] (Allsop CJ, Davies and Wigney JJ); Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25, 36 [44] (Jagot, Yates and Bromwich JJ).
33 What those factors are will be case-specific, although the authorities are replete with recurring examples of matters to which regard has properly been had in the exercise of the broad discretion at play. In Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560, 580 [91] Buchanan J (with whom, in the result, Gray and Graham JJ agreed), considered those recurring factors and what was, at the time, an emerging tendency to treat them as “checklists”. His Honour noted:
Checklists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.
34 The sole object to which the court must give effect in setting an appropriate penalty is to deter repetition of the conduct in respect of which it is imposed: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155, 167 [19] (Allsop CJ, White and O’Callaghan JJ; the “NIPP Case”). That requires that the court should strive to “…put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, 88 [98] (Dowsett, Greenwood and Wigney JJ); Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076, 52,152 (French J). In the NIPP Case, the full court set the task in the following terms (at 167-168):
19 It is unnecessary to engage in any extended discussion of principle. Of particular significance is the recognition that deterrence (general and specific) is the principal and indeed only object of the imposition of a penalty — to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act: French J in Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076 at 52,152, cited by the plurality in Commonwealth v Director of the Fair Work Building Industry Inspectorate (Civil Penalties Case) [2015] HCA 46; (2015) 258 CLR 482 at [55]. Retribution, denunciation and rehabilitation have no part to play.
20 Relevant factors in the overall assessment of penalty were helpfully listed by French J in CSR. They have been adopted in many cases. For present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition.
21 The seriousness of the contravention and other features of the conduct which may be seen as relevant to it…find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty: Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68 at [71].
22 The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477-478. Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct.
35 Realising the sole objective to which its imposition is directed requires that a pecuniary penalty “…must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249, 265 [62]-[63] (Keane CJ, Finn and Gilmour JJ); Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, 659 [66] (French CJ, Crennan, Bell and Keane JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458, 481 [101] (Dowsett and Rares JJ, North J dissenting; the “Perth Airport Case”).
36 In the present case, I accept that the Agreed Contraventions warrant the imposition of pecuniary penalties. I proceed to consider the factors most relevant to what those penalties ought to be.
Nature, character, gravity or seriousness of the contravening conduct
37 The conduct constituting each of the Agreed Contraventions has already been described. Insofar as concerns the Agreed Contraventions that took place on 1 March 2016, the Commissioner’s further amended statement of claim dated 23 September 2019 pleads—and the respondents’ amended defence admits—that Raspudic, on that day, “did not allow Bernaldo or Pragnell to commence work on the Site”. In doing so, the Commissioner contends—and the respondents accept—that Raspudic took, or threatened to take, action against each of Bernaldo and Pragnell that had the effect of prejudicing him in his employment with ACA Rigging.
38 It is that conduct that forms the nub (though not the totality) of the adverse action to which the Commissioner alleges that Raspudic (and, through him, the Union) subjected each of Bernaldo and Pragnell on 1 March 2016. Also relied upon to that end are the statements that Raspudic made on 1 March 2016 to each of those men (specifically, to the effect that they could not work at the Site unless or until they joined or paid money to the Union) and the exchange (and brief scuffle) that he had with Bernaldo later that morning (above, [10]).
39 What Raspudic did, or threatened to do, by way of “not allow[ing]” Bernaldo and Pragnell to work at the Site on 1 March 2016 could, perhaps, have been made clearer. The Commissioner’s further amended statement of claim offers some indication (by means of particulars subjoined to the allegation that Bernaldo, Pragnell and Cullen met with Raspudic on that day for the purposes of undergoing an induction) that Raspudic was responsible for “…sign[ing] off the induction paperwork to clear people to work on the [S]ite”. It is possible, perhaps likely—indeed, the same particulars appear to suggest—that CC Services, as occupier (or, otherwise, as the entity apparently in control) of the Site, required, as a condition of their being allowed to be at, remain at or perform work at the Site, that Bernaldo and Pragnell first obtain permission to that end from Raspudic. Raspudic’s withholding of that permission (if that’s what occurred) would amount to adverse action of the kind alleged.
40 The pleadings seem to indicate that there was more to Raspudic’s conduct. They indicate—which is to say that they allege and admit—that, by the comments that he made to Bernaldo and Pragnell, by the interaction that he had with Bernaldo in the lunch room later in the morning of 1 March 2016, and by his “not allow[ing]” Bernaldo and Pragnell to work at the Site, Raspudic threatened to take action “…that had [sic: would have had] the effect, directly or indirectly, of prejudicing [Bernaldo and/or Pragnell]”. How any of that conduct amounted to a threat is unclear. The withholding of some required permission to work (if that’s what occurred) was not, by itself, a threat to visit upon Bernaldo and Pragnell the prejudice that the pleadings allege and admit was visited. Likewise, none of the verbal (or, in one case, physical) exchanges that took place amounted, by itself, to a threat. In each case, it could only do so if accompanied by the promise of other conduct. What that other conduct might have been is unexplored in the pleadings.
41 The scope for confusion as to what it was, precisely, that Raspudic did on 1 March 2016 makes the court’s assessment of the gravity of his conduct a little more difficult than might normally be the case. Regardless, I can (and do) safely proceed on the basis that Raspudic either possessed and exercised a means of depriving Bernaldo and Pragnell of their ability or right to perform work at the Site on 1 March 2016, or else threatened some other ramification that he had the means to visit upon them with that end in mind.
42 The same mild criticism may be levelled in respect of the way in which the pleadings describe Travers’s conduct. The pleadings allege and admit that Travers’s exhortations to Bernaldo on 26 May 2016 were in the nature of a threat (albeit one that was implicit): he was suggesting to Bernaldo that, unless ACA Rigging agreed to pay “union rates” to its employees at the Site, he and the Union would “...take action to prevent ACA Rigging from continuing to perform its contract for services on the Site.” What action he was threatening is unexplored, perhaps (if not most likely) because it wasn’t clear. The conduct that Travers should be understood to have been threatening would ordinarily inform the severity or gravity or character of what he did (and, thereafter, the sanction that this court should impose in respect of it). If the means by which he was implicitly threatening to prevent ACA Rigging from working at the Site involved criminality, violence or unlawful conduct, for example, then the penalty attaching to his threat would inevitably be more severe than it would be had those means been otherwise lawful and peaceful.
43 Again, that scope for speculation about the nature of Travers’s implicit threat makes the court’s assessment of his conduct more difficult than is optimal. In the absence of particulars, I should prefer to proceed upon the assumption that what was threatened was nothing more than that Travers and/or the Union would exercise a degree of influence that they enjoyed over industrial relations within the Project. I do not presume that that influence, whatever it was, was the product of anything more than that Travers and the Union were industrial participants that CC Services and the other businesses that were engaged in connection with the Project generally preferred not to irritate. I do presume, though, that Travers and the Union had—and/or understood that they were perceived (including by ACA Rigging) to have had —the capacity to deliver upon what was threatened (namely, ACA Rigging’s exclusion from work at the Site).
44 Those observations made, I proceed to consider the nature, gravity, character or seriousness of the respondents’ conduct. What divides the parties primarily on this front is the significance (or otherwise) of the respondents’ history of conduct engaged in in contravention of the FW Act (or its legislative predecessors).
45 In Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 (“Pattinson”; Snaden J), I had occasion to summarise the Union’s history of conduct engaged in in contravention of the FW Act and its legislative predecessors as follows:
33 The Union’s history of prior contravention of the FW Act and its predecessors is a matter of some notoriety. The Union is a “serial offender” that has, over a long period, exhibited a willingness to contravene workplace laws in the service of its industrial objectives; and one that appears to treat the imposition of financial penalties in respect of those contraventions as little more than the cost of its preferred business model.
34 In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235, Tracey J recorded the following observations about the Union’s efforts to enforce a “no ticket, no start” philosophy at Australian building sites:
25 The CFMEU is a large, asset rich, and well-resourced industrial organisation. It has regularly been involved in litigation in which it has been found to have contravened provisions of the [Fair Work] Act, including ss 346 and 348, which attract pecuniary penalties. See the non-exhaustive summary of coercion-related decisions involving the CFMEU between 2010 and 2015 in Jessup J’s judgment in Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (the Webb Dock Case) [2017] FCA 62 at [67]. It may, therefore, be taken to be well aware of the constraints imposed upon it and its members by such provisions.
26 Despite this, it has persisted in its contravening conduct. The Commissioner has provided the Court with an analysis of such cases which demonstrates that, since about 2000, the CFMEU has been found to have breached pecuniary penalty provisions on more than 120 occasions.
27 The industry of the Commissioner has identified 15 cases, since 2000, in which the CFMEU and its officials have been found to have contravened the Act and its predecessors by engaging in misconduct with a view to maintaining “no ticket no start” regimes on building sites around the country. Penalties have been imposed by this Court, the Federal Magistrates Court and the Federal Circuit Court.
28 The present case falls into this pattern of repeated disregard for the law. To adopt the language of Mortimer J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 at [142]: the misconduct forms “part of a deliberate and calculated strategy by the CFMEU to engage in whatever action, and make whatever threats, it wishes, without regard to the law, and then, once a prosecution is brought, to seek to negotiate its way into a position in which the penalties for its actions can be tolerated as the price of doing its industrial business.” See also Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Children[’s] Hospital Contraventions Case) [2017] FCA 491 at [83]-[90] (Barker J) and the authorities there cited.
35 The Commissioner provided a similar analysis in this case. What, in 2017, was 120 occasions is now in the vicinity of 150. There have been at least seven occasions on which the Union has been found to have contravened s 349 of the FW Act or its predecessor: Radisich v McDonald and Construction, Forestry, Mining and Energy Union [2012] FMCA 919 (Lucev FM); Radisich v Molina & Ors (No 2) [2011] FMCA 66 (Lucev FM); Stuart-Mahoney v Construction, Forestry, Mining and Energy Union & Anor (No 2) [2008] FMCA 1015 (Burchardt FM) (upheld on appeal in Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56 (Ryan J)); Australian Building and Construction Commissioner v D’Arcy & Construction, Forestry, Mining and Energy Union [2019] FCCA 563 (Judge Egan); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) (2018) 358 ALR 725 (Tracey J); Australian Building and Construction Commissioner v Moses & Ors [2017] FCCA 2738 (Judge Jarrett); Australian Building and Construction Commissioner v Barker [2017] FCCA 1143 (Judge Jarrett).
46 Raspudic is not in the same category. Prior to 1 March 2016, he had not been found to have contravened the FW Act or any of its legislative predecessors (although he has been subsequently: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 (O’Callaghan J; hereafter, the “NewCold Picket Case”)). Travers has twice been ordered to pay pecuniary penalties in respect of conduct engaged in in contravention of the FW Act or its legislative predecessors: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors [2009] FMCA 1248 (O’Sullivan FM); Gregor v Construction, Forestry, Mining and Energy Union & Anor [2011] FMCA 562 (Riethmuller FM).
47 The respondents acknowledge their histories. The Union, on any view, has an appalling record of contravening provisions of the FW Act (and its predecessors), particularly those that are aimed at protecting the right of employees to not join industrial associations.
48 The Commissioner submits that the respondents’ histories (and the Union’s in particular) should inform the court’s assessment of the objective seriousness of their Agreed Contraventions. Because the respondents have the histories that they have, the Agreed Contraventions should, so the contention proceeds, be seen, objectively, to be very serious and deserving of significant penalty. He submits, in respect of the Union (whose history is, of course, considerably less flattering than those of the other respondents) that a penalty at or close to the maximum available would be appropriate.
49 The respondents (and the Union in particular) submit that their histories of prior offending—a term I use only for want of a better one—does not, or cannot properly, inform the court’s assessment of the nature of their conduct in the present case, nor otherwise inflate its objective seriousness or gravity. Those histories, so the contention proceeds, should not, or cannot properly, lead to the imposition of any penalties disproportionate to the instant contraventions. To put it another way: they contend that the range within which the court might properly impose penalties in respect of the conduct that constitutes their Agreed Contraventions must be determined by reference to the nature, seriousness or gravity of that conduct, as assessed in isolation from (and without reference to) the historical context against the backdrop of which the respondents engaged in it. It is, so the contention proceeds, only once that range is identified that that historical context becomes relevant (in the sense that it informs where, within that range, an appropriate penalty lies).
50 What, if anything, the court might make of those histories in the course of assessing the nature or character or gravity or seriousness of the Agreed Contraventions (particularly those of them that were committed by the Union) has been the subject of considerable jurisprudence over the last two years. Regrettably, that body of authority has yielded conflicting views about the role that a respondent’s antecedent contraventions might play in the court’s assessment of particular contravening conduct.
51 In Pattinson, I had occasion (at [39]-[67]) to trace that body of jurisprudence and to identify the schism that has developed. As was there laid bare, there are some cases in which the court has accepted that a respondent’s history of engaging in conduct in contravention of statutory injunctions such as those presently under consideration is apt to inform an assessment of the nature, character, gravity and/or seriousness of an instant contravention. In others, the court has held that a respondent’s history of contravening conduct cannot inform the character of an instant contravention. I referred, in particular, to the three most recent full court authorities that have considered the point: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208 (“Broadway on Ann”; Tracey, Logan and Bromwich JJ), Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246 (“Auimatagi”; Allsop CJ, Collier and Rangiah JJ) and Parker v Australian Building and Construction Commissioner (2019) 365 ALR 402 (“Parker”; Besanko, Reeves and Bromwich JJ). I accepted (Pattinson, [67]-[69] (Snaden J)) the submission that was advanced before me on that occasion—and that is advanced again on this occasion—that Broadway on Ann and Parker cannot easily be reconciled (albeit I acknowledged that that, too, was the subject of inconsistent conclusions). After acknowledging the potentially difficult position in which the court was placed on account of that apparent divergence of views, I attempted some justification of the position that I went on to adopt. In particular, I made the following observations:
71 Civil penalties have only one objective: deterrence. The court is charged, simply enough, with fashioning a penalty that serves to deter, both generally and specifically, the conduct in respect of which it is levelled.
72 If the only way to deter even the most objectively inoffensive conduct (so assessed without reference to historical context) is to impose a penalty at or approaching the maximum amount available, then the imposition of anything less would necessarily result in a failure to achieve the only object to which the imposition of civil penalties is directed. That acknowledged, it is not apparent to me how a civil penalty that is fashioned at (and not beyond) a level that is necessary in order to deter the repetition of particular conduct might ever be impugned as disproportionate to its nature or gravity (or seriousness or character). To phrase that proposition as a question: how can a penalty be disproportionate to the nature or gravity of the conduct in respect of which it is imposed if it is no more than what is necessary to achieve the only objective that its imposition is meant to achieve?
73 In NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285, Burchett and Kiefel JJ (with whom, on this issue, Carr J agreed) said (at 293):
…insistence upon the deterrent quality of a penalty should be balanced by insistence that it “not be so high as to be oppressive”. Plainly, if deterrence is the object, the penalty should not be greater than is necessary to achieve this object; severity beyond that would be oppression.
74 In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 (Jessup J), the court observed (at [8]):
If contravention of a law is visited with penal outcomes which are demonstrably inadequate to achieve the purpose of the law, it might as well not be a law at all. It is in this sense, in my view, that the principle of proportionality is amply reflected in the imposition of a penalty which takes due account of the importance of specific deterrence.
75 To speak, then, of a penalty that is disproportionate to the seriousness, nature, character or gravity of particular contravening conduct is, I think, to speak merely of a penalty that is more than what the deterrence of its repetition warrants. It is that central objective—deterrence—that remains supreme.
76 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 (Tracey J)—a decision published on the same day as the decision in Broadway on Ann—the court explored the application of the criminal law concept of proportionality to the imposition of civil penalties. Tracey J observed (at [18]-[20]):
18 Another criminal sentencing provision which is of limited ongoing relevance in the civil context is the principle that “the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is proscribed”: see Veen v The Queen [No 2] (1988) 164 CLR 465 [“Veen (No 2)”] at 478 (Mason CJ, Brennan, Dawson and Toohey JJ). In R v Kilic (2016) 259 CLR 256 at 266; [2016] HCA 48 at [20] (Bell, Gageler, Keane, Nettle and Gordon JJ), the High Court said that the use of the expression “the worst category” of an offence is apt to mislead. It cautioned that “sentencing judges should avoid using the expression ‘worst category’ and instead, in those cases where it is relevant to do so, state in full whether the offence is or is not so grave as to warrant the maximum prescribed penalty.” A case may fall within this category even if it is possible to imagine an even worse incident of the offending.
19 There are difficulties in translating this principle to the civil realm. It concentrates on the gravity of a particular criminal act and seeks to compare that act with other criminal acts.
20 Given the emphasis on deterrence in the civil regime, the maximum penalty may be appropriate for a person who has repeatedly contravened the same or similar legislative provisions despite having been penalised regularly over a period of time for such misconduct. The gravity of the offending, in such cases, is to be assessed by reference to the nature and the quality of the recidivism rather than by comparison of individual instances of offending: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 at [8] (Jessup J). Relevant matters will include the number of contraventions which have occurred over a period, whether the ongoing misconduct is the result of conscious decisions, whether the repeated contravenor has treated the payment of penalties as a cost of doing business and whether any attempt has been made to comply with the law as declared by the Court.
77 I respectfully adopt his Honour’s reasoning.
78 As can be seen from the analysis above, the authorities relevant to the present question place considerable emphasis upon the decision of the High Court in Veen (No 2). The facts of that case warrant examination. Mr Veen was a brain damaged homosexual prostitute who had a history of violent offending when affected by alcohol. In 1975, he stabbed a client to death and was convicted of his manslaughter (he was charged with his murder but a jury convicted him of the lesser crime on the ground of diminished responsibility). He was sentenced to life in prison, which the High Court, by majority (Stephen, Jacobs and Murphy JJ), later reduced to 12 years: Veen v The Queen (1979) 143 CLR 458 (“Veen (No 1)”). A short time after his release from prison, he killed another sexual partner and was again charged with murder. The Crown accepted his plea of guilty to manslaughter, again on the grounds of diminished responsibility. He was again sentenced to life imprisonment, which he again appealed (including by special leave to the High Court). The High Court, by majority (Mason CJ, Brennan, Dawson and Toohey JJ), on that occasion upheld his life sentence.
79 En route to doing so, the majority in Veen (No 2) had occasion to consider what it referred to as the “principle of proportionality”—that is, the notion that “…a sentence should be ‘proportionate to the gravity of the offence’ unless, perhaps, the applicant’s history warrants some departure from the principle”: Veen (No 2), 472 (Mason CJ, Brennan, Dawson and Toohey JJ—citing Veen (No 1), 490 (Jacobs J)). That principle was described as “firmly established in this country”: Veen (No 2), 472 (Mason CJ, Brennan, Dawson and Toohey JJ). At 473, the majority explained:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.
80 Later, their Honours described the following passage from the judgment of Mason J in Veen (No 1) as “an accurate statement of the law” (Veen (No 2), 475 (Mason CJ, Brennan, Dawson and Toohey JJ)):
…there is no opposition between the imposition of a sentence of life imprisonment with the object of protecting the community and the proportionality principle. The court imposes a sentence of life imprisonment on taking account of the offender’s record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when it is attended by the additional factors to which I have referred.
[Veen (No 1), 369 (Mason J)]
81 Later still, their Honours settled upon the passage recited within many of the cases that are analysed above, which I replicate with my own emphases (Veen (No 2), 477 (Mason CJ, Brennan, Dawson and Toohey JJ)):
…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell… The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
82 With respect to those who take a different view (if, indeed, that is what occurred in cases such as Parker and others), I do not discern from that passage any prohibition upon the court’s taking account of relevant historical context when assessing the gravity (or seriousness or nature or character) of a particular offence. To assess the gravity of an instant offence by reference to a respondent’s history of similar offending is not, by itself, to impose a fresh penalty for past offences. Nor does it, without more, involve or lead to the shaping of a penalty that is relevantly disproportionate. It merely informs what is proportionate; that is to say, how serious or grave the instant contravention is. The very circumstances of Mr Veen’s case illustrate the proposition: despite the similarities in his two manslaughter convictions (and despite having pleaded guilty to the latter of them), he was sentenced to 12 years’ prison for the first and life in prison for the other. The life sentence that was considered disproportionate in respect of the first conviction was permissible in respect of the second.
52 In the present case, the respondents urged me not to follow the conclusion that I reached in Pattinson. They contended, instead, that the position expressed in Parker was binding upon me and was, in any event, a correct statement of the law insofar as concerns the relevance of a respondent’s history of contravening conduct. The Commissioner urged the precise opposite, as of course he would.
53 In support of their contention, the respondents referred to Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 (Bromberg J; “The Bay Street Case”). There, the court considered the significance of a respondent’s—and, in particular, the Union’s—history of contravening conduct to the setting of pecuniary penalties. His Honour made the following observations on that score:
17. I note that in his recent judgment, Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654, Snaden J came to the view (at [39]-[69]) that there are two competing approaches by Full Courts of this Court as to the role of prior contraventions in the assessment of the imposition of a penalty, reflected by the reasoning of the majority (Tracey and Logan JJ) in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208 and the approach of the Full Court (Besanko, Reeves and Bromwich JJ) in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56.
18. The reasoning in Parker is consistent with that of the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117 and Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191, referred to above at [16] and has been followed by many judges of this Court, including myself, see: Australian Building and Construction Commissioner v Hassett [2019] FCA 855 (O’Callaghan J), [Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972] (Bromberg J), Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 (Bromberg J), Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Aldi/Altona North Case) (No 2) [2019] FCA 1667 (Bromberg J), Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498 (Mortimer J), Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 (Wheelahan J) .
19. I respectfully disagree with the conclusion of Snaden J in Pattinson (at [63] and following) that the observations in Parker do not “[represent] the law as it presently stands”. The Full Court in Parker relied on and applied the two principles enumerated by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v the Queen (No 2) (1988) 164 CLR 465 at 477-478 that:
• the antecedent criminal history of an offender “cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”; and
• “the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed”.
20. There can be no doubt that those principles state the law and are binding upon a single judge of this Court. As for the first of those principles, I understand the analysis in Parker to be emphasising that the penalty imposed must be proportionate to the gravity of the instant offence rather than proportionate to the gravity of the contravener’s history of offending. In my respectful view, an approach to proportionality focused upon the gravity of the contravener’s offending rather than the gravity of the instant contravention invites error.
54 Respectfully and with only one qualification, I accept what his Honour says at [18]. The authorities to which his Honour adverted toward the end of that paragraph were the “six post-Parker authorities that have considered the question” that, in Pattinson, I spent some time tracing. In all but one of those authorities, the court concluded that a respondent’s history of contravening conduct was not a circumstance that could properly inform an assessment of the seriousness, gravity, nature or character of an instant contravention. The one that held otherwise was Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555. There, Wheelahan J concluded (at [96]) as follows:
On the issue of the relevance of past contraventions by the CFMEU respondents and proportionality, I shall apply the principles and guidance identified in The Non-Indemnification Personal Payment Case, the Broadway on Ann case, and in Parker in the passages to which I have referred above. I accept the submission made on behalf of the CFMEU respondents that the prior record of a contravener does not permit the imposition of a penalty that is disproportionate to the offending conduct for which the penalty is to be imposed. But Veen v The Queen (No 2), the reasons of Tracey J and Logan J in the Broadway on Ann case, and the reasons of the members of the Court in Parker support the idea that past contraventions may be relevant in assessing the seriousness of the instant contraventions. A history of contraventions may affect a number of features of the instant contraventions, including whether the instant contraventions are a manifestation of a continuing attitude of disobedience to the law. For this reason, and when all the background circumstances and other features of a contravention are considered, what might in isolation and superficially be a minor contravention may take on the complexion of a much more serious contravention. And consistently with deterrence being the principal object of the imposition of civil penalties under the Fair Work Act, a history of contravention may point to a need for a more severe penalty than would otherwise be the case if there was no history of contravention. The significance of a history of contraventions may be compounded by the absence of contrition, and the absence of evidence addressing steps taken to ensure future compliance with the law. For these reasons, a severe penalty may be proportionate to what might in other circumstances be a minor contravention. Overriding these considerations is the care that should be exercised to ensure that any penalties imposed for the instant contraventions do not amount to double punishment for prior contraventions. Care in avoiding double punishment also informs other aspects of the process of fixing penalties, including whether the contraventions are part of a course of conduct, and the totality principle.
55 In Pattinson, I explained why I respectfully read Parker in a way that differs from the way in which Wheelahan J construed it (and consistently with the way that it has been applied in other authorities). I observed (Pattinson, [67]):
With respect to his Honour, I read Parker in a more constraining way: namely, as authority for the proposition that, when assessing the character (or nature or gravity or seriousness) of particular contravening conduct, the court must not take account of the contravener’s history of similar conduct (above, [53]). That is the interpretation of Parker that the respondents urge upon me. By supplementary written submissions, they suggest that “[n]othing in Parker supports the view articulated at [96] in [Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555] that past contraventions may be relevant to assessing the seriousness of the instant contravention.” Respectfully…, that submission is a step too far. Nonetheless, I accept the broader submission as to the proposition for which Parker stands as authority. It stands, I think, consistently with the construction of Parker that Bromberg, Mortimer and O’Callaghan JJ favoured in the cases to which I have referred above (namely, [Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972], [Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973], [Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Aldi and Altona North Case) (No 2) [2019] FCA 1667], [Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498] and [Australian Building and Construction Commissioner v Hassett [2019] FCA 855]).
56 I also respectfully agree with Bromberg J that the “…reasoning in Parker is consistent with that of the Full Court in [the NIPP Case] and [Auimatagi]”: see The Bay Street Case, [18] (Bromberg J; above, [53]). Parker and the NIPP Case both stand for the proposition that the penalty to be imposed in respect of a respondent’s contravention of a statute should be proportionate to the conduct by which that contravention is committed. Although it wouldn’t matter if I didn’t, I consider that point of principle to be unanimously- and well-settled; and, in any event, unimpeachably correct. What the NIPP Case does not say, however, is that the objective seriousness of an instant contravention must be adjudged independently of a respondent’s history of contravening conduct. Although there is no unanimity of view in this court, that seems to be the central ratio of Parker (and the subject of obiter in Auimatagi). It is impossible to reconcile that position with what the majority of this court held in Broadway on Ann. With the exception of Pattinson and another, more recent authority to which reference will shortly be made, that conflict is not referred to, let alone resolved, in any of the post-Parker authorities that have considered the question.
57 In The Bay Street Case, Bromberg J attempted—much as I did in Pattinson—to distil the import of what the High Court said in Veen v the Queen (No 2) (1988) 164 CLR 465, 477-478 (Mason CJ, Brennan, Dawson and Toohey JJ; “Veen (No 2)”). Again with respect, I agree with his Honour—and it is plainly the case—that the principles to which their Honours in Veen (No 2) gave voice are binding upon a single judge (and, indeed, upon full courts) of this court. I also respectfully agree, at the risk of repetition, that the task for the court in cases such as this is to fix a penalty that is “…proportionate to the gravity of the instant offence”. But, for the reasons to which I adverted in Pattinson, there is no warrant to divorce a respondent’s history of contravening conduct from an assessment of the objective nature, character, seriousness or gravity of an instant contravention. On the contrary, that history is a circumstance that informs the objective nature, character, seriousness or gravity of the contravening conduct in question. It does so insofar as it betrays an attitude of defiance or indifference toward the law, which in turn informs the “sting” that a court must impose if it is to have any prospect of deterring further repetition of the conduct. To observe as much is not to favour the imposition of a penalty that is “…proportionate to the gravity of the contravener’s history of offending”. Nothing in Veen (No 2) holds to the contrary.
58 I repeat the observation that I made in Pattinson (at [82]; above, [51]): to assess the gravity of an instant offence by reference to a respondent’s history of similar offending is not, by itself, to impose a fresh penalty for past offences. Nor does it, without more, involve or lead to the shaping of a penalty that is relevantly disproportionate. It merely informs what is proportionate; that is to say, how serious or grave the instant contravention is.
59 Those conclusions align with what this court concluded in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202 (Anastassiou J; “Castlemaine Police”). There, this court had occasion to consider the issue that confronts me presently. Anastassiou J observed (at [13]):
The proportionality principle requires simply that such weight should not be given to prior offences as would lead to the imposition of a disproportionate penalty. There is nothing inherent in the principle of proportionality that prohibits the instant contravention from being considered in the context of a pattern of behaviour or course of conduct on the part of a particular offender, whether that course of conduct is the subject of the instant contravention or may be inferred from a history of earlier contraventions.
60 Respectfully, I agree with and adopt his Honour’s observation. After considering the judgments of Tracey and Logan JJ in Broadway on Ann, his Honour then remarked (at [19]):
In my view, the reasoning by Tracey and Logan JJ is entirely congruent with the proportionality principle. The Commission’s analysis of the Union’s offending history provided in this case demonstrates that the Union has, as Logan J (at [69]) said, been engaged in “a lengthy and repeated pattern of unrepentant, outlaw behaviour…”. Where, as in The Broadway on Ann Case and in the many cases since, including the present case, the Union continues to arrogate to itself the licence to decide if, and how, it and its officers may behave, irrespective of the relevant proscriptions of the Act, in my opinion it would be contrary to the intention of s 546(1) of the Act to determine an appropriate penalty in isolation. I respectfully reiterate what Wheelahan J (at [96]) said in the Syme Library Case:
…what might in isolation and superficially be a minor contravention may take on the complexion of a much more serious contravention.
61 Reconciling the reasoning of the majority in Broadway on Ann with the principle of proportionality, Anastassiou J concluded (at [22]-[24]):
In circumstances that may correctly be characterised as I have above, it is open for a court to conclude that the aggregation of the anterior offences should be given such weight as appropriate, even if that results in relatively minor individual instances being characterised as falling within “the worse category of case” and therefore justifying the maximum penalty. In my view, such a conclusion is not offensive to the proportionality principle. It is but a recognition that individual instances of concerted, unlawful and self-arrogated behaviour may reasonably be characterised as meeting the description of the “worst category of cases” when considered in the context of such intractable recidivism. In this context every instance of contravention may be viewed as layered upon earlier instances, such that each instance becomes part of a laminated course of conduct.
The consideration to be given to anterior offending discussed above is consistent with the majority in The Broadway on Ann Case. In particular, it is consistent with the approach to anterior offences referred to (at [77]) by Logan J:
Once the contraventions on the day, deplorable in themselves, are viewed in context, they are, in my view, of the worst possible kind.
In the absence of more recent Full Court authority that has held The Broadway on Ann Case to be “plainly wrong”, I do not consider the later Full Court decisions in Auimatagi, The Non-Indemnification Personal Payment Case or Parker to have overruled The Broadway on Ann Case. As Snaden J observed (at [53]) in Pattinson:
Broadway on Ann was not referred to in Parker, let alone disavowed.
It is well accepted that a full court will follow earlier full court decisions unless found to be plainly wrong: SZEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at 257 per Allsop J (as his Honour then was). See also BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234 at 253-254 per Greenwood and Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at 563, 566-567 per Allsop P (as his Honour then was), Beazley and Basten JJA.
62 His Honour then considered the observations that Bromberg J made in The Bay Street Case (above, [53]), holding (at [27]):
Respectfully, for the reasons give[n] above, the two subsidiary principles as they are described by the majority in Veen (No 2) are complimentary. The latter does not preclude a consideration of the instant offence in the context of a history of anterior contraventions… It seems to me to be incongruous to take into account systematic conduct in an instant case but not give the same consideration to the systematic character of the instant contravention as may be inferred from an anterior body of offences. With respect, the risk of error apprehended by Bromberg J in the last sentence of [20] quoted above, does not arise if it is understood that the proportionality principle is the guiding constraint and the “second subsidiary principle” as described by the majority in Veen (No 2) (at 478), namely that “the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases”, would be contravened, “only if the case is recognizably outside the worst category”. Thus the task is one of characterisation of the instant contravention in context, where relevant giving appropriate weight to anterior contraventions. This task is a part of the broader task of “instinctive synthesis” that involves the selection of a figure that takes due account of all factors relevant to the particular case: Wong v The Queen (2001) 207 CLR 584, 611 [75]. See also Pattinson at [26] and the authorities therein referred to.
63 Again with respect, I agree. Conduct that is engaged in as the latest incarnation of a respondent’s continuing history of defiance of the law is objectively more serious—and more deserving of a sterner penalty—than conduct that is unique or isolated. That is so even if, when examined in isolation from its historical context, that conduct is benign or even trivial. In fashioning a penalty that is proportionate to particular contravening conduct, it is appropriate that its nature or character be assessed against the backdrop of that historical context.
64 In the Union’s case, that history is nothing short of astounding. Since 2003, it has been found, by this court and others, to have contravened industrial laws more than 160 times. Many of those occasions involved, as this one does, assertions of Union membership as a prerequisite to the performance of construction work. The Union’s apparent “no ticket, no start” policy has, then, been the subject of much consideration in this court. Its consistent failure to reign in those of its officials by whose conduct that policy has been enforced over many years leads to no other conclusion than that it favours that policy over the law: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235, [23], [28] (Tracey J).
65 It is convenient to consider the Union’s Agreed Contraventions in two parts. Insofar as concerns those that arose from the events of 1 March 2016, I regard the Union’s conduct—viewing it, as I do, against the backdrop of the Union’s appalling history of statutory contravention—as very much of the gravest, most serious kind. As the Union has been told time and time again, “no ticket, no start” is a grotesque relic of a long-bygone era that has no place in Australia’s modern industrial relations landscape.
66 The Union’s conduct of 26 May 2016, although serious, is less repugnant. The evidence before the court was that Travers believed that ACA Rigging’s employees were employed by a different entity and were entitled to rates of pay that had been negotiated with the Union. He was mistaken; but that properly informs the court’s assessment of the nature of his conduct. That Travers was motivated by that mistaken belief makes his conduct less serious than it would have been if, for example, he had known that ACA Rigging was already paying what it was obliged to pay. It is in his reaction to his belief that the seriousness of his conduct lies. Respectfully, the submission that was advanced before me—namely, that Travers did no more than comply with an applicable dispute resolution clause—was obviously contrived. He set out to (and did) threaten ACA Rigging and leave it with no option but to comply with his demand. Rather than address his concerns rationally and lawfully, he preferred instead to use the occasion as an opportunity to demonstrate his Union’s dominance over the Site. The Union has paid a significant price over a long period for having intimidated or coerced others into complying with its demands. That it would genuflect toward those same thuggish instincts in spite of that history—even when it believed that it had the law on its side—beggars belief.
67 Raspudic’s position is more orthodox. In March 2016, he had not previously been found to have contravened the FW Act or its predecessors. Regardless, there can be no credible doubt that he did what he did out of fealty to his Union’s policy of enforcing a “no ticket, no start” reality at the construction sites over which it wields influence.
68 As has already been stated, Travers’s position, whilst not nearly as bad as the Union’s, is also not flattering. He has twice been found to have acted in contravention of industrial laws—in 2009 (when he was held to have organised unlawful industrial action) and 2011 (when he was found to have contravened right of entry laws: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors [2009] FMCA 1248 (O’Sullivan FM); Gregor v Construction, Forestry, Mining and Energy Union & Anor [2011] FMCA 562 (Riethmuller FM).
69 Notwithstanding his relatively “clean” history, Raspudic’s Agreed Contraventions are, nonetheless, deserving of more than a proverbial slap on the wrist. I do not accept the respondents’ submissions that his conduct was “toward the lower end of the spectrum of seriousness”. Raspudic has added his name to the long list of officials who have willingly signed on to the Union’s unconscionable war against free association on Australian building sites. It is important that the penalties that are imposed upon him are fashioned at a level that is sufficient to deter repetition of the conduct not only by him but also by the network of other delegates and officers of the Union who might themselves be minded to enforce its archaic “no ticket, no start” philosophy. In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan Street Case”) [2018] FCA 957, (hereafter, the “Cardigan Street Case”) Bromberg J observed (at [65]):
…general deterrence is of particular relevance in respect of an individual who is an office holder or employee of an organisation such as the CFMMEU. The penalty imposed should be effective as a general deterrent for any other officer or employee to engage in similar contraventions. It should demonstrate to such persons that this Court will not tolerate that conduct and that significant penalties will be imposed irrespective of whether the conduct has been condoned by others including that person’s employer.
I respectfully adopt his Honour’s observations.
70 Travers’s conduct was less egregious. If he were properly understood to have demanded that ACA Rigging pay “union rates” at the Site indifferent as to whether it was, in fact, obliged to do so, and instead as part of some assertion of Union control, then Travers’s conduct might have assumed a different complexion. As it is, his conduct is more properly seen as an aggressive overreaction to a mistaken belief. It is appropriate that he should be penalised for that reaction; but I regard his contravening as less serious than Raspudic’s.
Contrition and cooperation
71 The respondents rightly point to the fact that they have conceded that the Agreed Contraventions took place. That, they submit, is a circumstance of which the court should take account in fashioning appropriate penalties.
72 The Commissioner downplays the extent of the respondents’ cooperation. The admissions, he points out, were made on what was to be the first day of a five-day trial. He was put, or substantially put, to the expense of preparing the matter for hearing.
73 The respondents, in reply, submit that the Commissioner’s pleading was substantially amended as a result of an agreement that the parties struck; and that they should, therefore, be understood to have conceded liability at an early stage (that is to say at the time that, or not long after, the amendments were agreed to). I do not accept that submission. The overwhelming bulk of the “significant surgery” that was done to the Commissioner’s pleading concerned causes of action that the Commissioner no longer presses. Those that relate to the Agreed Contraventions do not appear to have been amended nearly as much. One might understand why the respondents should have wished to hold off on conceding points in the hope that the Commissioner might be persuaded to drop others; but that does not translate into an early plea.
74 In any event, the real question for consideration is whether the respondents’ concessions bespeak some contrition on their part, or some other recognition by which the court might infer that deterrence looms less largely in the present case than it otherwise might. The respondents’ concessions undoubtedly convey an understanding on their part that their conduct was unlawful. It may reflect an understanding on their part that they ought not to have engaged in it. But there is no evidence that the respondents—and the Union, in particular—regret their conduct or are resolved not to repeat it. It seems just as plausible that their concessions were a forensic acceptance of the fact that their conduct was unlawful and that their interests would be better served by “…the court’s saying so before, rather than after, large sums of Union and public money were washed away by a contested trial”: Pattinson, [93]; see also Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, 102-103 [164] (Dowsett, Greenwood and Wigney JJ) and the Cardigan Street Case, [94] (Bromberg J).
75 In the case of the Agreed Contraventions that arose from Raspudic’s conduct on 1 March 2016, I do not accept that the admissions made in the present case should lessen the deterrent effect at which the penalties that will be imposed should be aimed. In Pattinson, I considered a similar argument. In relation to a similar “no ticket, no start” contravention, I concluded (at [94]) that:
…the Union regards the imposition of penalties as an acceptable cost of the manner in which it chooses to operate. I do not accept that its admissions in this case—as opposed to the penalties imposed in the many that preceded it—should be understood to reflect some sudden realisation that perhaps it ought to act lawfully and ought not to insist upon the forced co-option of construction workers to its ranks. Mr Pattinson’s admissions are similarly of no moment.
76 I have reached an equivalent view in this case with respect to Raspudic’s conduct. Although I will take account of the fact that concessions were made, I do not accept that either of Raspudic or the Union should receive any material “discount” to the penalty that would otherwise be imposed upon them.
77 In the case of the Agreed Contraventions that arose from Travers’s conduct on 26 May 2016, I am of a similar view. I do not consider that the respondents’ cooperation in making the admissions that have been made in respect of that conduct reflects any measure of regret or contrition on their part, or is otherwise apt to inform what deterrent is necessary to prevent repetition of the conduct in the future.
Impact of the conduct
78 The respondents submit that there is no evidence that any of Raspudic’s (and, through him, the Union’s) conduct of Tuesday, 1 March 2016 visited any loss upon anybody. I accept that that is so, however likely it is that there must have been some. Plainly, that conduct gave rise to financial implications for Bernaldo and Pragnell. They paid money—presumably their own (although that isn’t known)—to join the Union in circumstances where, it seems, that was not an expense upon which they wished to spend their proverbial hard-earned. Regardless, I accept that the financial impact of Raspudic’s conduct was, at worst, limited.
79 The financial implications of Travers’s conduct were more pronounced. ACA Rigging agreed to pay “union rates” at the Site, a decision that plainly increased its costs. To what extent is difficult to extract from the evidence. In the case of Pragnell, the Commissioner submitted that the increase was approximately 20 per cent. Whatever the precise impact might have been, I proceed upon the assumption that the commercial implications of Travers’s conduct were not immaterial.
80 I accept that, logically, a contravention that visits losses upon others warrants assessment as more serious than one that doesn’t. It is proper to take account of the fact that the Agreed Contraventions of 1 March 2016 had a limited commercial impact (if any). Doing so inclines in favour of the imposition of penalties smaller in quantum than might otherwise be warranted. Similarly, the impact of the conduct that took place on 26 May 2016—visiting, as it did, a more material impact upon its victim—warrants penalties larger in quantum than might otherwise be the case.
Civil double jeopardy, course of conduct and totality
81 As the factual recitation set out earlier in these reasons lays bare, there is a degree of overlap to the conduct constituting Raspudic’s (and the Union’s) contraventions of ss 346 and 348 of the FW Act.
82 The respondents contend that the circumstances of this case enliven the operation of s 556 of the FW Act. They submit that the conduct by which Raspudic contravened s 346 of the FW Act vis-à-vis Bernaldo was the same conduct by which he contravened s 348 of the FW Act vis-à-vis Bernaldo (and similarly with respect to Pragnell).
83 The Commissioner presses for the imposition of four discrete pecuniary penalties: one each for contraventions of ss 346 and 348 of the FW Act in respect of Bernaldo; and one each for contraventions of the same provisions in respect of Pragnell. Although he acknowledges that there is overlap (and that s 556 of the FW Act should apply to that extent), he contends that the conduct by which Raspudic (and, through him, the Union) contravened s 346 of the FW Act was not the same as the conduct by which he (and it) contravened s 348. That, he submitted, was so in respect of both Bernaldo and Pragnell. His written submissions on the point were as follows (references omitted):
31. Although s 556 does not require identity of constituent elements before it can operate, s 556 should not wholly collapse each ‘set’ of contraventions into a single penalty. In particular:
(a) Raspudic’s contraventions of s 348 in each case involved discrete acts to that which constituted his contraventions of s 346. Beyond simply making a statement to Bernaldo that he “could not work on the Project” after Raspudic told him he was not a CFMEU member (a statement of consequence engaging s 346), Raspudic went further to say that Bernaldo “could only work on the Site if he joined the CFMEU” (that is, a forward-looking statement engaging s 348). The same was the case with Pragnell: beyond simply saying that Pragnell had to get his union ticket “fixed up”, Raspudic went further to say that if Pragnell did not get his union ticket fixed up he could not work on the Site.
(b) Raspudic’s contraventions of s 346 in each case involved distinct mental elements to those constituting his contraventions of s 348. The former is directed toward each of Bernaldo’s and Pragnell’s engagement in industrial activity, whilst the latter is concerned with Raspudic’s intention to coerce a particular outcome.
84 I reject that submission. The Commissioner’s further amended statement of claim of 23 September 2019—to which, of course, the respondents have offered wholesale admissions—is not as precise as the written submission replicated above. It pleads, in respect of each of Bernaldo and Pragnell, the conduct in which Raspudic is said to have (and admits to having) engaged. In respect of each of Bernaldo and Pragnell, the conduct by which it is said that he contravened s 346 of the FW Act is wholly subsumed within the conduct by which it is said that he contravened s 348 of the FW Act. That being so, a penalty imposed in respect of the latter (vis-à-vis either of Bernaldo and Pragnell) will enliven the operation of s 556 of the FW Act in respect of the former: Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case) (No 2) [2017] FCA 367, [39]-[40] (Jessup J); Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201, [18]-[26] (Bromberg, Wheelahan and Snaden JJ). It is not open to impose pecuniary penalties in respect of contraventions of both ss 346 and 348 of the FW Act (insofar as concerns either of Bernaldo or Pragnell). Insofar as concerns Raspudic’s (and the Union’s) conduct of 1 March 2016, I proceed upon the basis that penalties may only be imposed in respect of the contraventions of s 348 of the FW Act.
85 The respondents contend that all of Raspudic’s relevant conduct of 1 March 2016 was engaged in within a single course. They submit that the court, in imposing penalties referable to his conduct on that day, should apply the “course of conduct” principle. I accept that submission.
86 In Pattinson, I made the following observations about the operation of that principle:
106 The “course of conduct” principle:
…recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
See: Royer v Western Australia (2009) 197 A Crim R 319, 328 [22] (Owen JA, with whom Miller JA agreed in the result, Buss JA dissenting).
107 In Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69, Rangiah J (with whom Ross J agreed in the result, Flick J dissenting) made the following observations about the “course of conduct” principle (at [181]):
The principle recognises that where there are multiple contraventions arising out of a single course of conduct, there is a danger of a contravener being punished more than once for essentially the same offending conduct. However, the principle does not involve a simplistic transposition of multiple contraventions into one contravention, or, necessarily, the imposition of only one penalty. The court’s task is to evaluate the conduct and its course and assess what penalty is, or penalties are, appropriate for the contraventions: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59 at [10] – [12], [123] – [124] and [132]; Transport Workers’ Union Australia v Registered Organisations Commissioner [No 2] [2018] FCAFC 203 at [84] and [92]; and the authorities referred to therein. That may, but will not necessarily, result in a single penalty being imposed for multiple contraventions arising out of a course of conduct.
108 The “course of conduct” principle does not operate as a de facto limit on the penalties that the court may impose in respect of multiple, related contraventions and the court is not obliged to apply it if doing so would fail to reflect the seriousness of the contraventions: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 286 IR 336 (hereafter, “The Nine Brisbane Sites Appeal”), 342-343 [12] (Allsop CJ), 363-364 [124] (Rangiah J, with whom Griffiths J agreed); [Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 (Allsop CJ, Middleton and Robertson JJ)], 106 [235] (Allsop CJ, Middleton and Robertson JJ). Nonetheless, in applying the principle, the task is “…to evaluate the considerations informing the contraventions (factual and legal) in order to impose appropriate penal relief that does not punish twice for the same conduct”: Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 363 ALR 464, 481 [91] (Allsop CJ, Collier and Rangiah JJ).
87 Raspudic’s conduct on Tuesday, 1 March 2016 was all engaged in as part of a single course. It was directed toward the enforcement of the Union’s “no ticket, no start” policy, to which reference is made above. It is true that that conduct did not overlap perfectly as between each of Bernaldo and Pragnell. In the case of Bernaldo, it involved a discussion additional to that which took place during the initial induction, as well as a brief physical scuffle (see above, [10]). It is for that reason that I regard the conduct to which Bernaldo was subjected as more serious (and deserving of a sterner penalty) than that to which Pragnell was subjected.
88 Consistently with the principles extracted from Pattinson, my conclusion about Raspudic’s single course of conduct does not require that I impose only a single penalty, nor that any penalties that are imposed be fashioned upon an assumption that only a single maximum amount is available. The Perth Airport Case (Dowsett and Rares JJ, North J dissenting) amply demonstrates that point. There, this court imposed separate penalties against the Union in respect of coercive conduct engaged in by four of its officials at a large construction site in Perth. All four officials had attended at the site to coordinate a blockade, the apparent purpose of which was to secure payments that they believed were owed to some of the workers who were engaged there. Their conduct was attributed to the Union in the usual way. The trial judge held that its contraventions arose from the same course of conduct and proceeded to impose upon it a single penalty. Dowsett and Rares JJ (North J dissenting) overturned that outcome, holding (at 481 [102]):
The CFMEU can be seen to have chosen to pay penalties in preference to obeying the law. It is not entitled to any leniency in the circumstances of the conduct complained of. The legislative purpose in the Act, of creating separate contraventions and imposing pecuniary penalties on organisations, such as the CFMEU, for conduct engaged in on the one occasion by their agents, will not be served by equating multiple contraventions by a recidivist as a wholly single course of conduct. Each separate contravention by the CFMEU’s officials and organisers on 22 October 2013 had a distinct effect and impact in making the blockade of a very large site effective. The Act contemplates that the Court can fix a high price, by way of aggregated penalties, on an organisation in circumstances such as the present to deter future repetition.
89 In determining the penalties that should attach to Raspudic’s (and, through him, the Union’s) conduct of 1 March 2016, I shall be conscious that what was done was done as part of a single course of conduct.
90 The “course of conduct” principle and the operation of s 556 of the Act arise only in respect of the events of 1 March 2016. There is no suggestion that either should impact upon the court’s consideration as to what pecuniary penalties should be imposed in respect of the events of 26 May 2016.
91 As the court is here confronted with multiple contraventions, it is also appropriate that I should consider the application of the so-called “totality principle”. Doing so requires that, before imposing any pecuniary penalties, I consider whether in total they amount to a proportionate response to the wrongdoing with which the court is confronted.
Penalties to be imposed
92 In light of what is said above, I will impose upon the Union three pecuniary penalties in respect of its contraventions of s 348 of the FW Act—that is to say, two in respect of its conduct of 1 March 2016 and one in respect of its conduct of 26 May 2016. By reason of s 556 of the FW Act, I will not—indeed, am unable to—impose any pecuniary penalty in respect of its contraventions of s 346 of the FW Act.
93 In relation to the Union’s contraventions of s 348 of the FW Act on 1 March 2016, I am minded to impose two pecuniary penalties—one relating to each of Bernaldo and Pragnell—each set at the maximum amount available, namely $54,000.00. In light of the observations that I have made about the “course of conduct” principle, those penalties will be reduced to a total of $80,000: $43,000.00 relating to the conduct that was directed toward Bernaldo and $37,000.00 relating to the conduct that was directed toward Pragnell. I am conscious that that results in a total amount that exceeds the maximum that is available for a single contravention. I consider that penalties set at this level are necessary to reflect the seriousness of the contraventions: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262 (hereafter, “The Nine Brisbane Sites Appeal”), 266 [12] (Allsop CJ), 287-288 [124] (Rangiah J, with whom Griffiths J agreed).
94 In relation to the Union’s contravention of 26 May 2016, I am minded to impose a pecuniary penalty in the amount of $30,000.00. As stated above, I accept that Travers was, on that day, operating under the mistaken belief that ACA Rigging was obliged to pay what he referred to as “union rates”. Nonetheless, his reaction was wholly inappropriate. Rather than lawfully vindicate the rights that he thought were being violated, he preferred instead to react with threats and aggression. That is not the first time that the Union has wandered down that road; nor the second, third, or even twentieth. On the contrary, it appears something of a go-to industrial tactic. The Union must pay a heavy price for its failure to learn the lessons of its history.
95 Having considered them in their totality, I am satisfied that penalties totalling $110,000.00 are a proportionate response to the Union’s wrongdoing and represent the best prospect that the court has of deterring its repetition. In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498, [41] (Mortimer J), this court supposed that the imposition of penalties with that aim in mind amounted to “something of a fiction”. That may be so; but I remain of the view that the penalties that I am minded to impose upon the Union represent the court’s best chance, however limited it might be, of achieving the deterrent objective to which civil penalties are directed.
96 Insofar as concerns Raspudic’s conduct of 1 March 2016, I am minded to impose two pecuniary penalties. In respect of the conduct directed toward Bernaldo, I am minded to impose a pecuniary penalty of $6,500.00. In respect of the conduct directed toward Pragnell, I am minded to impose a pecuniary penalty of $5,500.00. In light of the observations made above about the “course of conduct” principle, I consider it appropriate to reduce those to a total of $7,500 ($4,000.00 for the conduct that was directed toward Bernaldo and $3,500.00 for the conduct that was directed toward Pragnell). Considering them in their totality, I am of the view that penalties totalling that sum are proportionate to Raspudic’s wrongdoing (as I have assessed it above). Combined with the personal payment order that I intend to make (the nature of which is addressed below), penalties set at that level are appropriate to deter both he and others in similar positions from engaging in equivalent conduct in the future.
97 Insofar as concerns Travers’s conduct, I am minded to impose a pecuniary penalty of $6,000.00. Again, that sum is proportionate to his wrongdoing (as I have assessed it above) and, together with the personal payment order that I will also make, is at a level that is appropriate to deter him, and others like him, from repeating the conduct in which he engaged.
Ancillary relief: personal payment orders
98 The Commissioner seeks relief in the nature of personal payment orders, by which each of Raspudic and Travers should, so far as is practicable, pay the pecuniary penalties that will be imposed upon them from their own funds, rather than funds of the Union. There is no doubt—and, indeed, the parties accept—that the court enjoys a discretion to make orders of the kind for which the Commissioner contends: see, in that vein, the NIPP case, [39] (Allsop CJ, White and O’Callaghan JJ).
99 The Commissioner submits that personal payment orders are appropriate in this case because:
(1) the conduct in which Raspudic and Travers each engaged was deliberate and serious;
(2) there is no evidence that either is contrite, or intends to change his approach to matters of industrial disputation or freedom of association in the future;
(3) each has previously been found to have contravened industrial legislation (albeit that, in Raspudic’s case, that occurred after 1 March 2016); and
(4) the Union, through the conduct of officials like Raspudic and Travers, has an extensive history of contravening industrial legislation, and regards the payment of the penalties that courts have imposed as the acceptable cost of its approach to industrial relations.
100 The respondents submit that the “sting” inherent in the pecuniary penalties that are imposed will not be “…removed merely by the possibility that it will ultimately be paid by someone else”. They contend that “…the implied power to make a personal payment order should be exercised with caution and only in circumstances where it is required by the circumstances of the contravening conduct and contravener to accomplish the deterrent effect of the penalty”.
101 I accept the respondents’ contentions. Nonetheless, I consider that the circumstances of this case warrant relief of the kind for which the Commissioner contends. In reaching that conclusion, I am mindful of—and gratefully adopt—the following observations that Bromberg J made in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 (hereafter, “Laverton North”):
87 The making of a personal payment order is discretionary. It is an unusual order. Ordinarily, no restrictions are imposed upon a contravener obtaining financial assistance from another person to pay a penalty imposed for a contravention of the law. Pecuniary penalties are ordinarily imposed on the basis that the burden or sting needed to address deterrence will have its intended impact despite the capacity for the contravener to obtain assistance in paying the penalty imposed. Non-pecuniary consequences, including reputational damage, attach to a Court’s condemnation when a penalty is imposed. Further, pecuniary assistance for the payment of a penalty will often come at some cost, even if the cost involves a non-pecuniary detriment for the contravener. If the usual approach is to be departed from, some good reason ought to be demonstrated.
102 His Honour, in that case, went on to make personal payment orders similar to those for which the Commissioner presently contends. Chief amongst his Honour’s reasons for doing so was the Union’s long history of contravening industrial legislation. That, his Honour held, reflected what this court has concluded on a number of occasions: namely, that the Union regards the imposition of penalties in respect of contraventions of the FW Act (and its legislative predecessors) as an acceptable cost of its preferred approach to industrial relations.
103 In the NIPP case, the court had occasion to record that conclusion in unambiguous terms:
40 The Union acts through its officials, of whom Mr Myles was, and is, one. The penalty against the individual must be a burden or have a sting to be a deterrent. The history of contravening by the Union, all undertaken through its officials, reflects a willingness to contravene the Act and to pay the penalties as a cost of its approach to industrial relations. Mr Myles has a history of significant contravention. A personal payment order of the kind to which we will come will bring home to him, and others in his position, that he, and they, cannot act in contravention of the Act knowing that Union funds will always bale him, or them, out.
41 There is ample foundation to consider the order presently warranted. This is especially so in the complete absence of any evidence of contrition or change of approach from either the Union or Mr Myles.
104 The same considerations apply in the present case. The enormity of the Union’s history of statutory non-compliance cannot be overstated. For many years, it appears to have imbued its officials (or many of them, particularly in Victoria) with the belief that compliance with industrial laws is optional; and not something that should interfere with the achievement of its industrial objectives. The significant penalties that have been levied against it have had little, if any, discernible impact upon the way that it operates. It appears to have taken few or no steps—and certainly few or no effective steps—to reign in the unlawful conduct repeatedly committed in its name.
105 Additionally, the Union is notoriously cash- and asset-rich. The evidence before me was that the Victorian and Tasmanian branch of the Union’s Construction and General division alone had, as at 31 March 2019, net assets in excess of $70 million. Clearly, the Union has the capacity to pay many multiples of whatever this court might order. Constrained by a penalty regime that is absurdly impotent in the present context, it is appropriate that the court should look toward other relief as a means of shocking the Union and its adherents into the 21st century.
106 If ever there were an industry in which special or innovative measures to ensure compliance with industrial laws were warranted, it is the construction industry. In the absence of regulatory change aimed at addressing the Union’s apparent indifference to the unlawfulness committed in its name, the only obvious way to effect a change of heart on its part is to focus upon those at the proverbial coalface. At some point, it may be appropriate to examine the role of employers. It is not lost on me that Raspudic appears to have done what he did in his capacity as—and not obviously beyond his apparent authority as—an employee of CC Services.
107 I consider that it is appropriate, in the present case—indeed, necessary for the purposes of achieving the deterrent effect toward which the court’s orders will be directed—for personal payment orders to be made in respect of Raspudic and Travers.
108 The orders that the Commissioner proposes are consistent with those that were made in the NIPP Case and Laverton North. I will make orders substantially in those terms.
109 The respondents contended—and I accept—that the imposition of a personal payment order is a circumstance to which the court should have regard when setting pecuniary penalties. I have done so. The penalties that I am minded to impose upon Raspudic and Travers, combined with the personal payment orders that I will make, are of a nature that is apt to deter each of them, and others in similar positions, from repeating the conduct to which this matter pertains.
Declaratory relief
110 In addition to the imposition of penalties, the Commissioner seeks declaratory relief to “record” each of the Agreed Contraventions. By their written submissions, the respondents did not oppose that relief.
111 I recently had occasion to consider the court’s power to grant declaratory relief that does nothing more than record that a respondent’s conduct was engaged in in contravention of a statute: Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070, [73]-[98] (Snaden J). After referring to authority, I observed (at [85]):
Subject to other circumstances that might inform an exercise of the court’s discretion, I accept—indeed, am bound to observe—that the court has the power to grant declaratory relief that does nothing more than state that a respondent’s prior conduct was engaged in in contravention of a statute… I do so with difficulty and scepticism; all the same acknowledging that this court makes orders of that nature with a frequency that reflects a view that is “firmly entrenched in history”: Justice Robert French, ‘Declarations – Homer Simpson’s remedy – is there anything they cannot do?’ [2007] FedJSchol 24, [50].
112 I then explored the circumstances in which there might be utility in the court’s exercising its discretion to grant declaratory relief. It is not necessary to restate the matters of principle to which I referred. Instead, I accepted (at [98])—and still accept—that:
…the court is able to grant declaratory relief as a means of marking its disapproval of conduct found to have been undertaken in breach of a statute. Alternatively, I accept that there might be circumstances where declaratory relief is appropriate to realise some broader educative or deterrent effect, or otherwise to vindicate or assist an applicant’s actions.
113 In the present case, I do not consider that an exercise of the court’s discretion to grant declaratory relief is warranted. The orders that the Commissioner seeks amount to nothing more than a shorthand restatement of the pleadings. They would do no more than replicate what, by the conclusions contained in these reasons (above, [17]), I have accepted. That is not an appropriate deployment of the remedy: Warramunda Village v Pryde (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ). There is no evidential basis upon which to suppose that an expression of disapproval in declaratory form might serve some educational or deterrent effect, or otherwise vindicate or assist the Commissioner; much less that it would have any such effect additional to that which will be realised via the pecuniary penalties that will be imposed.
114 There is nothing peculiar about the Agreed Contraventions that warrants their expression by means of declaratory relief. In Fair Work Ombudsman v Australian Workers’ Union [2020] FCA 60, I made the following observations (at [76]):
The form of the relief that is sought does not obviously convey any sense of disapproval by the court of the AWU’s Contravening Conduct; and certainly not anything beyond that which is conveyed by these reasons. There is, perhaps, a measure of convenience that a short-hand, declaratory expression of the Agreed Contraventions might realise, particularly given that the pecuniary penalties that will be imposed will be referrable only to two of them: see, in that vein, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555, [78] (Wheelahan J). However, declaratory relief that does nothing more than record that historical conduct was embarked upon in breach of a statutory injunction should not, in my view, be granted merely because it is convenient (or not inconvenient) to grant it, at least not in a relatively straightforward case such as this one, in which the relevant contraventions are agreed, the reasons for judgment are not especially lengthy, and the conclusions to which those reasons give voice are reasonably accessible. In order that declaratory relief might be appropriate, there should be some utility to what is sought that is founded in any one or more of the ways that the authorities have historically recognised… In the absence of there being some utility in doing so, it is not appropriate to grant declaratory relief: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, 613 [52] (Gaudron J); Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99, [3] (Allsop CJ, Middleton and Davies JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ); Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406, 414 (Lockhart J, with whom Spender and Cooper JJ agreed).
77 I am not persuaded that that utility here exists. It is not apparent how declaratory relief in the form sought might realise any educative or deterrent effect additional to that which flows from these reasons and/or the orders that I will make. Likewise, I do not accept that the Ombudsman’s efforts in prosecuting this action will be vindicated any more than they will be by these reasons and/or the penalty orders that I will make.
78 It is simply not necessary or useful to record in declaratory form that the four Agreed Contraventions occurred (as I have accepted).
115 Equivalent observations apply to the present case. No declaratory relief will be granted.
Conclusion
116 Pursuant to s 546(1) of the FW Act, the court will order that:
(1) the Union pay pecuniary penalties totalling $110,000.00—comprising:
(a) a penalty of $43,000.00 in respect of its conduct toward Bernaldo on 1 March 2016 (by which it contravened s 348 of the FW Act);
(b) a penalty of $37,000.00 in respect of its conduct toward Pragnell on 1 March 2016 (by which it contravened s 348 of the FW Act); and
(c) a penalty of $30,000.00 in respect of its conduct toward ACA Rigging on 26 May 2016 (by which it contravened s 348 of the FW Act);
(2) Raspudic pay pecuniary penalties totalling $7,500.00—comprising:
(a) a penalty of $4,000.00 in respect of his conduct toward Bernaldo on 1 March 2016 (by which he contravened s 348 of the FW Act); and
(b) a penalty of $3,500.00 in respect of his conduct toward Pragnell on 1 March 2016 (by which he contravened s 348 of the FW Act).
(3) Travers pay a pecuniary penalty of $6,000.00 in respect of his conduct toward ACA Rigging on 26 May 2016 (by which he contravened s 348 of the FW Act).
117 I will also make orders requiring that Raspudic and Travers pay the penalties imposed upon them personally, rather than from funds supplied to them for that purpose by the Union.
118 The penalties summarised above will, in each case, be made payable to the Commonwealth. Insofar as concerns the penalties to be imposed upon the Union, they will be payable within 28 days. Insofar as concerns the penalties to be imposed upon Raspudic and Travers, they will be payable within 60 days. The respondents submitted that Raspudic and Travers should be afforded an opportunity to make further submissions to the court should they require more time to pay the penalties imposed upon them. They shall have that opportunity if they require it, provided that they make any application to extend the relevant deadline within 30 days.
119 Presumably conscious of the effect of s 570(1) of the FW Act, the Commissioner does not seek an order for costs and none will be made.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden. |
Associate:
