FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070

ORDERS

THE COURT DECLARES THAT:

1.    On 14 May 2018 the second respondent (O’Mara), being an officer of the first respondent (CFMMEU) and acting in that capacity for the purposes of s 94 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act), contravened s 47(1) of the BCIIP Act by engaging in an unlawful picket at the Constitution Place building site at London Circuit, Canberra.

2.    On 14 May 2018 the third respondent (Smith), being an officer of the CFMMEU and acting in that capacity for the purposes of s 94 of the BCIIP Act, contravened s 47(1) of the BCIIP Act by engaging in an unlawful picket at the Constitution Place building site at London Circuit, Canberra.

3.    On 14 May 2018 the fourth respondent (Bolitho), being an officer of the CFMMEU and acting in that capacity for the purposes of s 94 of the BCIIP Act, contravened s 47(1) of the BCIIP Act by engaging in an unlawful picket at the Constitution Place building site at London Circuit, Canberra.

4.    By operation of s 94 of the Act, by the conduct of O’Mara, Smith and Bolitho the subject of the above declarations, the first respondent is taken to have engaged in the unlawful picket and committed a contravention of s 47(1) of the Act.

THE COURT ORDERS THAT:

5.    O'Mara pay a penalty of $12,600 in respect of his contravention of s 47(1) of the BCIIP Act.

6.    Smith pay a penalty of $12,600 in respect of his contravention of s 47(1) of the BCIIP Act.

7.    Bolitho pay a penalty of $8,400 in respect of his contravention of s 47(1) of the BCIIP Act.

8.    The CFMMEU pay a penalty of $126,000 in respect of its contravention of s 47(1) of the BCIIP Act.

9.    Each of these penalties be paid to the Commonwealth of Australia within 28 days.

10.    O'Mara pay the penalty referred to in order 5 personally in that he not, whether before or after the payment:

(a)    seek to have or encourage the CFMMEU in any way whatsoever, directly or indirectly, to 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 CFMMEU in any way whatsoever, any money or financial benefit referable to the payment of the penalty, whether in whole or in part.

11.    Smith pay the penalty referred to in order 6 personally in that he not, whether before or after the payment:

(a)    seek to have or encourage the CFMMEU in any way whatsoever, directly or indirectly, to 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 CFMMEU in any way whatsoever, any money or financial benefit referable to the payment of the penalty, whether in whole or in part.

12.    Bolitho pay the penalty referred to in order 7 personally in that he not, whether before or after the payment:

(a)    seek to have or encourage the CFMMEU in any way whatsoever, directly or indirectly, to 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 CFMMEU in any way whatsoever, any money or financial benefit referable to the payment of the penalty, whether in whole or in part.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    The right of peaceful assembly is a human right recognised in the International Covenant on Civil and Political Rights (ICCPR). Article 21 of the ICCPR provides that no restrictions may be placed on the exercise of the right save for those “imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others”. Industrial picketing is, or at least can be, a form of peaceful assembly which has been used by organised labour over the last two centuries to encourage or put pressure on employers to agree to its demands or change their business practices. Of course, not all industrial pickets have been peaceful. They may get out of hand. Agitators may encourage violence. People may be injured and property damaged.

2    The Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) outlaws certain forms of picketing in the building industry and prohibits the organisation of, or engagement in, an unlawful picket. In this proceeding, the building industry regulator, the Australian Building and Construction Commissioner, alleges that on 14 May 2018 three employees and office-bearers of the Construction, Forestry, Maritime, Mining and Energy Union (union officials) engaged in an unlawful picket and that both they and the Union thereby contravened the BCIIP Act. Additional allegations made under the Fair Work Act 2009 (Cth) (FW Act) in the original pleading against the Union, the union officials and others are no longer pressed. By an amended originating application, supported by an amended statement of claim, the Commissioner applies for declaratory relief, pecuniary penalties against the respondents, and, in the case of the three union officials, orders that each of them pay those penalties personally. The three union officials and the Union admit they engaged in an unlawful picket. Consequently, this judgment is concerned with the orders that should be made.

The relevant statutory provisions

3    Unlawful picketing is a form of unlawful action addressed in chapter 5 of the BCIIP Act. This chapter applies to action taken by a constitutionally-covered entity; that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of such an entity; and/or consists of advising, encouraging or inciting, or action taken with intent to coerce such an entity to take or not take (or to threaten to take or not take) particular action in relation to another person: BCIIP Act, s 45. A “constitutionally-covered entity” includes “a constitutional corporation”, BCIIP Act, s 5. “Constitutional corporation” means a corporation to which para 51(xx) of the Constitution applies. Paragraph 51(xx) of the Constitution includes trading corporations formed within the limits of the Commonwealth of Australia. It is common ground that the Union is such an entity.

4    Unlawful picketing is prohibited by s 47 of the BCIIP Act. Section 47 is a novel provision in that there was no equivalent section in any of the predecessor legislation. It provides that:

(1)    A person must not organise or engage in an unlawful picket.

Note: Grade A civil penalty.

(2)    An unlawful picket is action:

(a)    that:

(i)    has the purpose of preventing or restricting a person from accessing or leaving a building site or an ancillary site; or

(ii)    directly prevents or restricts a person accessing or leaving a building site or an ancillary site; or

(iii)    would reasonably be expected to intimidate a person accessing or leaving a building site or an ancillary site; and

(b)    that:

(i)    is motivated for the purpose of supporting or advancing claims against a building industry participant in respect of the employment of employees or the engagement of contractors by the building industry participant; or

(ii)    is motivated for the purpose of advancing industrial objectives of a building association; or

    (iii)    is unlawful (apart from this section).

Note: See also Division 2 of Part 2 of Chapter 6 (reason for action and coercion).

5    “Building industry participant” is defined in s 5 to mean, amongst other things, a building employer, a building employee, and a building contractor. “Building site” is defined in s 5 as a site at which building work is being or may be performed. “Building work” is defined in s 6.

6    Section 81 relevantly provides that:

(1)    A relevant court, on application by an authorised applicant, may make one or more of the following orders relating to a person (the defendant) who has contravened a civil remedy provision:

(a)    an order imposing a pecuniary penalty on the defendant;

(b)    an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention; and

(c)    any other order that the court considers appropriate.

…

(2)    The maximum pecuniary penalty is:

(a)    for a Grade A civil remedy provision—1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units; and

(b)    for a Grade B civil remedy provision—100 penalty units if the defendant is a body corporate and otherwise 20 penalty units.

…

(5)    A pecuniary penalty under paragraph (1)(a) is payable to the Commonwealth, or to some other person if the court so directs. It may be recovered as a debt.

(6)    In determining a pecuniary penalty under paragraph (1)(a), the court must take into account all relevant matters, including:

(a)    the nature and extent of the contravention; and

(b)    the nature and extent of any loss or damage suffered because of the contravention; and

(c)    the circumstances in which the contravention took place; and

(d)    whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.

…

7    The Commissioner falls within the definition of an “authorised applicant” in s 5 of the BCIIP Act.

8    Section 84 applies to multiple contraventions. It states that:

(1)    A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil remedy provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.

(2)    However, any pecuniary penalty imposed must not exceed the sum of the maximum penalties that could be ordered if a separate pecuniary penalty were ordered for each of the contraventions.

9    Section 94 deals with the liability of bodies corporate. It provides that:

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, to have been engaged in also by the body.

State of mind of a body corporate

(2)    If, for the purposes of this Act, 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.

10    As the Union is, and was at all material times, an association of employees registered as an organisation under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act), it is a body corporate capable of being sued in its registered name: see FWRO Act, s 27.

The relief sought

11    The power to grant declarations is conferred on the Court by s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the power to impose penalties by s 81 of the BCIIP Act. The Union accepts that pecuniary penalties are appropriate. It also accepts that, in proceedings of this kind, even when penalties are imposed, and even when the facts are established by agreement, a declaration is an appropriate remedy. In Cruse v Multiplex Ltd (2008) 172 FCR 279 at [53], Goldberg and Jessup JJ endorsed the view expressed by Lee J in Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd [2004] FCA 693; 207 ALR 329 at [21] that “there is some utility in declaring contraventions of the Act to have occurred in order to define and publicise the type of conduct that constitutes a contravention of the Act and to set out clearly the foundation on which the consequential orders…, including those based on accessorial liability, are grounded.”.

12    The Union does not oppose the grant of declaratory relief nor, with one qualification, does it oppose the form of the declarations the Commissioner proposes. That qualification relates to the number of contraventions by the Union, a subject on which the parties have very different views.

The issues

13    The parties filed an extensive “statement of agreed facts and admissions” but they remain divided on three questions. Those questions are:

(1)    the number of contraventions by the Union;

(2)    the amount of the pecuniary penalties, including the correct approach to assessment; and

(3)    whether personal payment orders should be made against the three union officials.

The facts

14    In addition to the agreed facts, both the Commissioner and the Union adduced some evidence.

15    The Commissioner’s evidence related to the financial position of the Union. It took the form of an affidavit from Robert John Peter Andersen, a lawyer employed by the Commissioner’s solicitors, Ashurst, to which hundreds of pages of documents were annexed. The Union’s evidence consisted of an affidavit from one of its legal officers, Tom Fischer. That affidavit concerned two matters. The first related to the governance of the ACT Divisional Branch of the Union’s Construction and General Division, to which the union officials belonged. The second related to the concerns of the Union that gave rise to the picket.

16    No objection was taken to the Andersen affidavit but the Commissioner objected to the Fischer affidavit on the ground of relevance. At the hearing, Mr Fischer’s affidavit was read and received into evidence subject to relevance. The evidence was relevant in that it could rationally affect indirectly, if not directly, the assessment of the penalty or penalties that should be imposed on the Union: Evidence Act 1995 (Cth), s 55. I will deal with the relevance of the first matter later in these reasons. It suffices at this point to note that evidence relating to the background to the dispute that gave rise to the picket is relevant because it provides the context in which the contraventions took place. The circumstances in which the contravention took place is one factor the Court is bound by the terms of para 81(6)(c) of the BCIIP Act to take into account. The agreed facts include certain contextual matters. There is no apparent reason why the respondents should not be permitted to supplement the agreed facts with evidence, provided that the evidence is not in conflict with the agreed facts. Mr Fischer’s evidence is not in conflict with the agreed facts. The weight to be attached to the evidence is another matter.

17    Based on the agreed facts and the undisputed evidence I make the following findings.

The project

18    At all relevant times, Hitchcock Civil Engineering and Landscapes (Dale & Hitchcock) was carrying out building work on a project known as “Constitution Place”. The project was undertaken by Capital Airport Group Pty Ltd. It involved the construction of two buildings between the boundaries of Constitution Avenue, London Circuit, the ACT Legislative Assembly building and Theatre Lane. Dale & Hitchcock had been engaged by Construction Control Australia Pty Ltd, the principal contractor, on 8 December 2017 to perform bulk excavation earthworks. Dale & Hitchcock had no employees. All workers it used on the project were employed by Kardad Pty Ltd and supplied to Dale & Hitchcock under a labour hire arrangement. The directors of Kardad were Robert Hitchcock and Charles Dale, two of the four partners of Dale & Hitchcock.

19    The project site was a building site within the meaning of the BCIIP Act and both Capital and Construction Control were in the business of engaging in building work within the meaning of s 6 of the BCIIP Act.

The Enterprise Agreement

20    Clause 9 of the enterprise agreement between Dale & Hitchcock and the Union — D.A DALE & D.A DALE & R.1 HITCHCOCK & MCKENNA t/a Dale & Hitchcock Civil Engineering & Landscaping/CFMEU Collective Agreement (ACT) 2012-2016 (Enterprise Agreement) — reads:

9.    Employment Security, Staffing Levels, Mode of Recruitment and Replacement Labour

9.1    The Company recognises that in certain circumstances the use of contractors and labour hire may affect the job security of Employees covered by this agreement.

9.2    If the Company wishes to engage contractors to perform work that might be performed by current or future Employees under this agreement, the Company must first consult in good faith with potentially affected Employees and their Union.

9.3    If, after consultation, the Company decides to engage bona fide contractors, these contractors must be afforded the same terms and conditions of engagement (or terms no less favorable) as they would receive if they were engaged as Employees under this agreement performing the same work. The use of sham sub-contracting arrangements would constitute a breach of this agreement.

Supplementary Labour Hire

9.4    Where there is need for supplementary labour to meet temporary/peak work requirements, such labour may be accessed from bona fide labour hire companies following consultation with the Company Consultative Committee and/or workplace delegate. If labour hire is to be used the company shall ensure that any workers engaged through a supplementary/labour hire arrangement and who are under the direction and control of the company performing work that, had it been done by direct employees of the Company would have been covered by this Agreement, shall receive wages, allowances and conditions not less than those contained in this Agreement.

21    The “Company” was a defined term in the Enterprise Agreement and referred to Dale & Hitchcock, although the business was not incorporated.

22    Clause 12 of the Enterprise Agreement contained an acknowledgment by Dale & Hitchcock of their legal obligation to comply with ACT and Federal workplace laws and regulations and their agreement to an audit by an approved auditor when requested by the Union.

Events leading up to the picket

23    On 7 March 2018 the second respondent, Jason O’Mara, an employee of the Union and the Secretary of the Branch, wrote to Mr Hitchcock. Mr O’Mara stated that the Union had become aware that Dale & Hitchcock were employing workers on terms and conditions derived solely from the Building and Construction General On-Site Award 2010, when they were covered by the Enterprise Agreement. Mr O’Mara asserted that the workers were entitled to be paid amounts equivalent to the difference between the amounts to which they were allegedly entitled to under the Enterprise Agreement and the amounts they received under the award. He said that Kenneth Miller, an organiser with the Union, was available to discuss and agree on a plan to assess and repay any liabilities owed to Union members. In the event that repayments were not made, Mr O’Mara indicated that the Union reserved its rights to take further legal action to effect recovery on behalf of its members.

24    It appears that shortly thereafter Mr Hitchcock indicated to Mr Miller that no action would be taken to address the Union’s concerns. Consequently, on 29 March 2018, the third respondent, Zachary Smith, another Union employee and the Assistant Secretary of the ACT Branch, wrote to Mr Hitchcock on behalf of the Union to request that Dale & Hitchcock agree to an audit by an approved auditor of its payments to workers in accordance with cl 12.3 of the Enterprise Agreement. On 9 April 2018 Mr Hitchcock replied, saying that Dale & Hitchcock was “happy to comply” with Mr Fischer’s request to engage an independent auditor and indicated that they would “begin the process” as soon as possible.

25    Between 9 and 30 April 2018 representatives of Dale & Hitchcock and the Union exchanged correspondence in which the terms of reference of the proposed audit were discussed but no agreement was reached.

26    On 7 May 2018 the Union instituted proceedings in the Fair Work Commission under s 739 of the FW Act, seeking that the Commission deal with the dispute about the alleged underpayments under the dispute settlement procedure contained in the Enterprise Agreement. The application to the Commission is annexure TF-6 to Mr Fischer’s affidavit.

27    On 11 May 2018, Michael Inman, a journalist employed by the publisher of The Canberra Times, Federal Capital Press of Australia Pty Ltd, emailed Mr Smith and a Union organiser, Michael Hiscox, enquiring about the proceedings in the Fair Work Commission. Mr Hiscox replied the following day. His reply relevantly included the following passages:

In response to your questions, the below comments are attributable to Zach Smith, Assistant Secretary of the CFMEU.

1)    What are the allegations re: wage theft?

Construction Control (the builder of the Constitution Place project) has engaged Dale and Hitchcock and intends to engage Alto Scaffolding. The Union has evidence that both of these companies have committed wage theft. In the case of Dale and Hitchcock, they are refusing to pay to their enterprise agreement, and Alto are underpaying superannuation and other award conditions. These issues have been raised with both companies directly and neither has addressed the issue. The Union has also raised this issue with Construction Control who has taken no action.

…

Other attributable comments

The Union will not take a backwards step in protecting the wages and conditions of construction workers. Our message to Terry Snow, Construction Control, and Minister Stephen-Smith is that we will keep coming back to this Project until the workers are [paid] what they are owed. The Union's expectation is that every worker should be employed under a Union agreement that delivers decent wages and conditions.

(Emphasis added.)

28    On 13 May 2018, Mr Hiscox received a text message from another journalist at The Canberra Times, Steven Trask. Mr Trask said that he had been asked to look into some claims the Union was making about wage theft on the project, adding: “Apparently they are protesting tomorrow or some bloody thing?”.

29    The same day, in an email to Mr Inman, David McLennan, a digital editor employed by Federal Capital Press, emailed Mr Inman to check on “that contractors pay yarn”. He asked:

What’s the wage theft that’s been alleged? [Is it] paying below the agreed rates, penalties, allowances? And have the papers been filed in court yet?

30    Mr Inman replied:

Yes, allegedly paying below agreed rates, etc.

My understanding is papers filed and served. I’m told conciliation scheduled for Monday arv.

I haven’t heard back from the company re if they want to comment. So not sure if we’ve given them ample opportunity given it’s a Sunday arvo and [M]other’s [D]ay.

Union going to picket the site at 8:30am tomorrow morn. (Has that been booked in[.])

The picket

31    At or around 5:30am on Monday, 14 May 2018, a group of between 12 and 20 people including Mr O’Mara, Mr Smith, and another respondent, Joshua Bolitho (who was employed by the Union as an organiser of the ACT Branch) (the picketing group), engaged in obstructive picketing, which consisted of the following conduct:

    hanging signs and flags on fences bordering Constitution Avenue bearing logos and other Union insignia;

    parking two cars immediately in front of the main entrance gate to the project site located on Constitution Avenue near the westernmost corner of the site in such a way as to block vehicle access and partially block pedestrian access to the main entrance gate; and partially block access to the padlock which secured the main entrance gate overnight;

    congregating in a group at the main entrance to the project site and linking arms in such a way so as to block pedestrian and vehicle access to the main entrance and access to that padlock;

    wearing clothing bearing logos and other insignia of the Union;

    placing and securing chains and locks on various gates at the project site without the authorisation of its occupiers, such that they were unable to open the gates;

    parking a car registered to the Union in front of the pedestrian access gate on Theatre Lane in such a way as to block pedestrian access to that gate;

    parking a variable message sign opposite the project site and operating the sign in such a way as to electronically display at various times these messages:

○    “Alto Scaffold = wage theft”;

○     “Dale & Hitchcock cheats workers”;

○     “Stop wage theft on ACT government projects”;

○     “Danger! Wage theft occurs on this site”;

○     “Bad bosses and ACT Gov partners in crime”; and

○    Other words to the effect of alleging “wage theft”.

32    At around 5:30am that day, Carlo Bisa, the Dale & Hitchcock Site Supervisor, attended the project site to open it and saw that it was subject to the obstructive picketing described above. He called Mr Hitchcock and told him that “[Dale & Hitchcock] has no access to the site as all the gates are blocked”. He also called Mick Muir, the person responsible for organising Dale & Hitchcock’s trucks, and directed him to put all the tracks on standby until “this blockade issue is resolved”.

33    At about the same time Mr Hitchcock attended the project site and approached Mr O’Mara. He asked: “Mate, what are you doing?” Mr O’Mara replied: “Youse are engaged in wage theft.”. Mr Hitchcock directed him to “move your cars or I’ll call the cops”. Mr O’Mara replied: “It’s not your job to call the police. It’s not your site.”. Mr Hitchcock then telephoned the ACT police.

34    At or around 6am, First Constable Mukhin of the ACT Police attended the project site and spoke to Mr O’Mara and Mr Smith. During the course of that conversation, Mr O’Mara and Mr Smith told Constable Mukhin that the site was blocked by the Union because of unfair pay conditions and they were “trying to contact Construction Control to discuss”.

35    Around that time Mr O’Mara telephoned Peter Payten, the Managing Director of Construction Control. During the course of that conversation, Mr O’Mara asked Mr Payten to come to the site, saying that the Union had an issue with Dale & Hitchcock.

36    At or around 6.30am, Nathan Geppert, the Construction Control Site Manager, approached Mr O’Mara and Mr Smith. The following conversation took place:

Geppert:    “What is going on? We want to get into work and time is restricted. We want you to get in the car and move the car.”

O’Mara:    “Look, the best thing you can do is go into your shed and have a coffee and wait this out. The duration of the job doesn’t concern you, you’re just a labourer.”

Geppert:    “I am the Site Manager and basically the program does fall on my shoulders.”

O’Mara:    “You shouldn’t be employing sham contractors [Dale & Hitchcock] and Alto Scaffolding.”

Geppert:    “It is not my decision personally.”

Smith:    “Go inside the shed and wait for this to get resolved.”

O’Mara:    “You can try and make a name for yourself. Try and be a hero but we are here to make a stand from [sic] sham contracting.”

37    Mr Hitchcock arranged for a group of truck drivers, who had been engaged to perform work at the project site that day, to arrive together by bus to attempt to gain access to the site.

38    At or around 7am, a group of workers engaged by Dale & Hitchcock attempted to enter the project site via the front gate. At about the same time Mr Payten and Mr O’Mara exchanged words:

O’Mara:    “There is an issue with the agreement with [Dale & Hitchcock] and their guys and that they’re not being looked after or paid appropriately.”

Payten:    “This isn’t the forum. This is not appropriate to come onto this project to stop work.”

O’Mara:    “We need to sort it out. We’ve been talking to them for a while and they are not sorting it out.”

Payten:    “Let’s get this sorted out by moving this vehicle and get rid of your guys. I am happy to facilitate a meeting between yourself and Dale [&] Hitchcock for a reasonable result. It is not right to bring it onto the construction site.”

39    Between 7:15 and 7:45 am, the bus carrying the group of truck drivers arrived at the project site. The picketing group, including Mr O’Mara, Mr Smith and Mr Bolitho, linked arms in such a way as to obstruct the bus from entering the site. Mr Dale used a pair of bolt cutters to cut a padlock, which had been securing the front gate, and attempted to open the gate. The picketing group, including Mr O’Mara, Mr Smith and Mr Bolitho, blocked entry to the site so as to delay workers engaged by Dale & Hitchcock from entering the site. Mr Payten directed Mr O’Mara and Mr Smith to move the cars which were obstructing access to the entrances to the site. Mr O’Mara and Mr Smith both refused, saying that they could not find the keys to the cars. Mr Payten met with Mr Smith, Mr Hitchcock, Mr Dale and Asher Trounce, the Dale & Hitchcock Project Manager. During that meeting, Mr Smith said: “I believe [Dale & Hitchcock] is not complying with their obligations to employees in regards for wages [sic]”. Mr O’Mara said: “We have to do this now because you will be off[-]site soon in a month or two and we won’t be able to stop you”. The representatives of the Union and Dale & Hitchcock then agreed on an audit process.

40    By about 8:30 am, the picketing group had dispersed and left the site, the variable message sign had been removed, and work had resumed on the project.

41    As a result of the unlawful picket, the commencement of work at the site was delayed by approximately two hours. Both Dale & Hitchcock and Construction Control suffered loss and damage which took the following form:

(1)    loss of productivity (from labour and plant and equipment); and

(2)    the consequential impact on the performance of later scheduled works which were delayed by the picket.

42    The value of the lost productivity incurred by Dale & Hitchcock was $15,195. The agreed facts did not particularise the value of the lost productivity for Construction Control.

43    For the reasons set out in the following two paragraphs, the picket was an unlawful picket within the meaning of s 47(2) of the BCIIP Act.

44    First, the picket:

(1)    was action that was taken for the purpose of preventing and restricting a person from accessing or leaving the project site and directly prevented and restricted a number of persons including Messrs Bisa, Hitchock, Geppert, Payten, and Trounce from accessing the site;

(2)    was motivated for the purpose of:

(a)    supporting and advancing claims:

(i)    against Dale & Hitchcock in respect of the employment of employees of Kardad under a labour hire arrangement and the engagement of Kardad to supply contract labour; and

(ii)    against Construction Control in respect of the engagement of Dale & Hitchcock;

(b)    advancing the industrial objectives of the Union, namely, the industrial objective of a challenging alleged underpayments in contravention of Part 2-1 of the FW Act, which the Union colloquially refers to as “wage theft”;

(3)    was unlawful at common law, too, because it constituted:

(a)    a substantial and unreasonable interference with the enjoyment by Dale & Hitchcock and Construction Control of the project site when each was a contractual licensee at the site and therefore amounted to the tort of private nuisance; and

(b)    direct interference with the contracts Dale & Hitchcock had with both Construction Control and Kardad in circumstances where:

(i)    each of Mr O’Mara, Mr Smith and Mr Bolitho was aware of those contracts;

(ii)    each of Mr O’Mara, Mr Smith and Mr Bolitho knew that the picket would induce or procure Construction Control to breach its contract with Dale & Hitchcock and Dale & Hitchcock to breach its contract with Kardad;

(iii)    each of Mr O’Mara, Mr Smith and Mr Bolitho intended that the picket would induce or procure those contractual breaches; and

(iv)    the picket caused loss and damage to each of Construction Control and Dale & Hitchcock,

and therefore amounted to the tort of interference with contractual relations.

45    Second, the picket affected, was capable of affecting, and was taken with intent to affect the activities, functions, relationships, and business of Construction Control, “a constitutionally-covered entity”.

Liability of O’Mara, Smith and Bolitho

46    Each of Mr O’Mara, Mr Smith, and Mr Bolitho engaged in the unlawful picket and committed one contravention of s 47 of the BCIIP Act.

Liability of the Union

47    The conduct of Mr O’Mara, Mr Smith, and Mr Bolitho in engaging in the unlawful picket was authorised by the Union and the Branch. Each of the men engaged in the unlawful picket in the capacity of the role and position he held in the Union and the Branch and within the actual and apparent scope of his authority.

48    For these reasons, and in view of s 94 of the BCIIP Act, the conduct of the three men is taken to be the conduct of the Union and the Union is liable for their conduct.

In what amount should penalties be ordered?

The maximum penalties

49    Section 47(1) is a “Grade A civil penalty provision”, attracting a maximum penalty of 1,000 penalty units for a body corporate and 200 penalty units for an individual: BCIIP Act, s 81(2). At the time of the contraventions in the present case the value of a penalty unit was $210: Crimes Legislation Amendment (Penalty Unit) Act 2017 (Cth), Sch 1. Thus, the maximum penalty for a contravention that may be imposed on the Union is $210,000 and the maximum penalty that may be imposed on each of the union officials is $42,000.

50    The maximum penalties “invite comparison between the worst possible case and the case before the court” and, “taken and balanced with all of the other relevant factors” provide “a yardstick”: Markarian v The Queen (2005) 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

General principles

51    In determining the appropriate penalties, s 81(6) of the BCIIP Act stipulates that the Court must take into account all relevant matters, including:

  (a)    the nature and extent of the contravention; and

(b)    the nature and extent of any loss or damage suffered because of the contravention; and

  (c)    the circumstances in which the contravention took place; and

(d)    whether the person has previously been found by a court … to have engaged in any similar conduct.

52    Other relevant factors include the seriousness of the contraventions; whether or not they were deliberate; the time over which the conduct took place; the size of the contravener and its degree of power; the extent to which senior officials were involved; the culture of the organisation concerning compliance or contravention; any cooperation with the regulator; and contrition: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 at [20] (Allsop CJ, White and O’Callaghan JJ).

53    As the Full Court explained in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 (Dowsett, Greenwood and Wigney JJ) (The Queensland Infrastructure Case) at [103]–[104]:

The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.

The factors that concern the particular circumstances of the defendant, particularly where the defendant is a corporation, generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.

54    The purpose of a civil penalty is principally, if not entirely, protective; it is to promote the public interest in compliance: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (The Agreed Penalties Case) at [54]–[55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). The overriding consideration is deterrence, both specific and general. It 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 …”: The Non-Indemnification Personal Payment Case at [19]. It makes no difference that the liability of the contravener is vicarious rather than direct: Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308 (Besanko and Gordon JJ) at [52]–[57] and [71]–[73].

55    Nevertheless, the penalty must be proportionate to the contravening conduct: The Non-Indemnification Personal Payment Case at [22]. The maximum penalty is reserved for contraventions of “the worst kind”: QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150; 204 IR 142 at [55] and [58] (Keane CJ and Marshall J). See also Stuart at [30] (Moore J), for example. Since this is a contentious issue in the present case, I return to it later in these reasons.

56    The Court’s task is to fix penalties that are “just in all the circumstances” (Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 1014 at [55] per Gordon J), penalties which pay “appropriate regard to the circumstances in which the contraventions … occurred and the need to sustain public confidence in the statutory regime which imposes the obligations”: Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417; 191 IR 445 at [29] (Moore, Middleton and Gordon J). It entails identifying and balancing all factors relevant to the contraventions and the circumstances of the respondents, and making a value judgment about what penalty is appropriate in the light of the protective and deterrent purpose of a pecuniary penalty: The Queensland Infrastructure Case at [100]. The process is one of, or akin to, the “instinctive synthesis” involved in criminal sentencing, that is to say the method by which the sentencing judge identifies the relevant factors, discusses their significance, and then makes a value judgment about what sentence is appropriate having regard to those factors: Markarian at [51] (McHugh J). The process involves balancing “many different and conflicting features”: Markarian at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

Factors relevant to all respondents

The nature and extent of the contraventions

57    In the present case, the contraventions by the union officials and the consequent contravention by the Union consisted of obstructing the entry to a building site over a period of up to three hours, resulting in a delay of two hours in the commencement of work that day. Two businesses were affected by the conduct. By its very nature a picket is a deliberate act. This picket was not spontaneous. The Commissioner submitted that it bore “all the hallmarks of a well-planned and sophisticated CFMMEU blockade”. In oral argument, his counsel, Mr Bourke QC, referred to “the backgrounding of journalists” and the timing, contending that the picket occurred “during peak hour on a Monday morning in Canberra’s CBD”. He argued that the Court could infer from those matters that the respondents intended to extract maximum publicity from their unlawful conduct, to cause maximum harm, and exert maximum pressure on the two affected businesses. The evidence does not enable me to come to any view on the extent of the planning but I accept that some planning was necessarily involved. Mr O’Mara and Mr Smith refused to remove their cars when asked to do so and, despite a number of requests to discontinue, the picket did not cease until Dale & Hitchcock came to an agreement with the Union about an audit process. But the evidence does not support the inferences I was invited to draw. First, the agreed facts do not indicate that the respondents initiated any contact with journalists and there is no evidence to indicate that any of the respondents tipped off the media or issued a media release. Second, no foundation was laid for a finding that peak “hour” in Canberra on a Monday begins at 5.30am, which was the time the picket commenced.

58    The picket arose from a dispute between the Union and Dale & Hitchcock concerning the alleged underpayment of workers at the building site, which the parties had been unable to resolve and where no agreement had been reached about an audit process.

59    The picket occurred a week after the Union had commenced proceedings in the Fair Work Commission seeking that it deal with the dispute under the dispute settlement procedure in the Enterprise Agreement. It was plainly intended to put pressure on both that business and Construction Control to agree to the Union’s demands or, at least, to accelerate the dispute resolution process. Adopting and adapting the observations of Tracey J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) (2015) 234 FCR 451 at [103], a not entirely dissimilar case, “[i]n seeking to achieve [their] desired outcomes”, there were lawful processes available to the union officials. They must, or at least should, have known that the means they chose were unlawful. Their approach was “one of entitlement”.

The nature and extent of any loss or damage caused by the contraventions

60    The picket caused financial loss to Dale & Hitchcock in the amount of $15,195 and had an impact on the performance of later scheduled works which were delayed by the picket. Similarly, Construction Control suffered a loss of productivity during the two hours in which work was unable to proceed and “consequential impacts” on the performance of later scheduled works which were delayed by the picket.

The seriousness of the contraventions

61    The Commissioner submitted that the conduct of the union officials was serious, involving “an array of highly obstructive and otherwise unlawful actions which risked both the safety of the [picketing group] and those seeking to enter the [project site], and public inconvenience from the significant inner-city congestion that would have been created had [Dale & Hitchcock] sent its trucks to the [project site] that morning”. I accept that the conduct of the union officials was serious. The combination of the deliberate obstruction of entry to the project site, the refusal to remove vehicles when asked, and the use of chains and locks without authorisation from the site’s occupiers puts the contraventions in the serious category. I also accept that there was at least a theoretical risk to the safety of the picketers. The evidence is insufficient to enable me to gauge the extent, if any, of any inconvenience to the public.

Cooperation with the regulator and admissions of wrongdoing

62    The respondents have cooperated with the regulator in the disposition of this proceeding, by agreeing on the facts and making admissions. Their conduct in this respect saved the costs and inconvenience of a trial. Despite their utilitarian value, it is not a sufficient basis for a discount that admissions have saved the cost of a contested hearing. Nevertheless, a discount may be justified if the admission of liability indicates an acceptance of wrongdoing and “a suitable and credible expression of regret” and/or “a willingness to facilitate the course of justice”. See Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at [76] (Stone and Buchanan JJ).

63    The respondents eschewed any notion that they were entitled to any leniency because their admissions represented an acceptance of wrongdoing, let alone a “suitable and credible expression of regret”. Indeed, none of the respondents offered an apology or exhibited any contrition and in their original defence they all denied liability. That said, I accept that the admissions of liability indicate “a willingness to facilitate the course of justice”. The respondents agreed to participate in a mediation. A series of admissions were made at the mediation following which both the amended statement of claim and the amended defence were filed. That occurred at an early stage of the proceeding, before any evidence was filed and before any orders for the filing of evidence were made. For this reason, as senior counsel for the respondents put it in argument, “there is a basis for some mitigation”. As the Full Court observed in The Queensland Infrastructure Case at [163], “[f]rom a public policy perspective, it is important to encourage such cooperation by reflecting it in the penalties imposed”. In the absence, however, of any contrition or any evidence to demonstrate that the respondents have accepted their wrongdoing, no more than a modest discount is justifiable.

The question of motivation

64    In their written submissions the respondents argued that the agreed facts demonstrate that the picket was not motivated by arbitrary or base motives but by a desire to advance the Union’s industrial objective of challenging the alleged underpayments and a desire to stop the alleged exploitation of workers engaged by Dale & Hitchcock. They accepted that this was no defence to the contraventions and does not excuse them but submitted that it was a matter that should be taken into account as a mitigating factor.

65    As I said earlier, the circumstances giving rise to the picket are plainly relevant, but I reject the respondents’ submission that they mitigate the respondents’ culpability.

66    The fact that the motive for taking action falling within para 47(2)(a) of the BCIIP Act is to support or advance claims against a building employer or contractor in respect of the employment of employees or the engagement of contractors by that participant or to advance the Union’s industrial objectives cannot be a mitigating factor since it is an element of the contravention: see para 47(2)(b). As the Full Court (Goldberg, Jacobson and Tracey JJ) put it in Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120; 189 IR 145 at [85], “[t]he end does not justify the means”.

67    The respondents relied on the following observations of Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2)) [2019] FCA 1859 (the subject of a pending appeal and cross-appeal) at [28]–[33]:

28.    The submission here made by the respondents is … that the “genuine and legitimate motivation” of the respondents in pursuing their unlawful conduct be taken into account. The respondents submitted that in assessing the seriousness of the contraventions their “unlawful conduct … needs to be placed in [an] appropriate context.” The asserted context here was that the respondents’ purpose or motive for taking the unlawful conduct was their desire to have addressed what the respondents characterised as the patently inappropriate and morally reprehensible circumstance that a female on a building site was being required to use the same toilet as the men on that site.

29.    Whether those circumstances were in fact inappropriate or reprehensible is not the point, what matters is the respondents’ perception of them, so long as that perception was reasonably available …

30.    As Jagot J observed in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934 at [46]-[47], it is necessary to recognise that unlawful conduct occurred in a particular context and had a particular purpose. As in that case, this was not “an exercise of industrial power for some arbitrary or capricious end”. As her Honour went on to say at [47], placing unlawful conduct in context does not involve accepting that the contravener’s perceptions justified the unlawful conduct or that the “ends justify the means”.

31.    The relevance to the assessment of the appropriate penalty of the purpose for which unlawful conduct is taken was also recognised by Barker J in Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 at [25] where his Honour said:

Although, as was agreed by the respondents, the industrial action was unlawful, I accept that it arose out of concerns for the treatment of the BPA employees. As such, the conduct of the respondents is to be contrasted with conduct carried out for arbitrary or base motives.

32.    The relevance of motive or purpose on sentencing in the criminal context and in particular, that it may bear on the need for specific deterrence, was also acknowledged in the following observation made by Vincent JA (Phillips CJ and Cummins AJA in agreement) in R v Arundell [2003] VSCA 69 at [35]:

Whilst the effect upon the victim will remain the same, whatever may be the reason for or pressures underlying the commission of an offence, the motive for embarking upon the activity can assume relevance in a number of different ways. It may bear, for example, upon the genuineness of any expression of remorse, the need for specific deterrence or the prospects of the offender's rehabilitation. Sometimes, but I suspect only in extremely rare circumstances, the presence of extreme financial pressures might mitigate the level of culpability of an individual who breaches the trust reposed in him to the extent and the manner evidenced in the present case.

33.    I accept that the perceptions held by Long and Benstead are relevant in assessing the seriousness of their contraventions and, in turn, the need for specific deterrence …

68    I accept that engaging in an unlawful picket for some arbitrary or capricious reason would be an aggravating factor but I do not consider that the industrial motivations of the union officials in the present case mitigate their culpability. The motivations for the contraventions with which The Bay Street Case (No 2) and the other cases to which Bromberg J referred were not elements of those contraventions. None of the officials in this case expressed remorse. Rehabilitation is irrelevant: The Non-Indemnification Personal Payment Case at [19]. And I cannot see how, in the present context, it bears upon the need for specific deterrence. In any case, in The Bay Street Case (No 2), while accepting that “the perceptions” of the union officials were relevant to the need for specific deterrence, his Honour went on to say at [33] that “those perceptions only slightly diminish the need for specific deterrence in circumstances where the respondents have not demonstrated that their unlawful conduct was the only realistic means available to them to address the concerns which motivated that conduct”. Here, it is common ground that the respondents’ concerns could have been addressed by lawful means. Even if I were to accept that the respondents’ motivations were mitigating factors, I would accord them little weight.

69    It will be recalled that clause 12 of the Enterprise Agreement contained an acknowledgement by Dale & Hitchcock of its legal obligation to comply, amongst other things, with federal workplace laws, and its agreement to an audit by an approved auditor when requested by the Union. The impetus for the picket was the failure of Dale & Hitchcock to agree to an audit by an approved auditor at the Union’s request. The Union invoked the dispute resolution clause in the Enterprise Agreement to deal with Dale & Hitchcock, but it seems that its officials were impatient. They were not prepared to wait to allow the agreed procedure to run its course. It is troubling that the Union saw fit to insist on Dale & Hitchcock’s compliance with federal workplace laws when its officials behaved as though they were above the law. Notwithstanding their motivations, their participation in an unlawful picket tends to undermine the Union’s moral authority in its campaign for wage justice. In this respect, their actions may well have been counterproductive.

The Union

The number of contraventions

70    The parties agree that, by operation of s 94 of the BCIIP Act, the Union is taken to have engaged in the conduct constituting the contraventions of s 47 of the Act by Messrs O’Mara, Smith and Bolitho. The Commissioner contends that “on a straight application of the language of s 94” this means that the Union contravened s 47 three times. The Union, on the other hand, submitted that the contravening conduct comprised the actions of its officials which, “taken together, constituted the picket”. There was, as it put it, only one picket, not three and therefore only one contravention. The Union noted that in his written submissions the Commissioner recognised that picketing “by its nature, involves collective effort”. Alternatively, the Union submitted that the Court should treat the three contraventions attributed to the Union as a single course of conduct.

71    It will be recalled that s 94(1) relevantly provides that “any conduct engaged in on behalf of a body corporate by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority … is taken, for the purposes of this Act, to have been engaged in also by the body”.

72    It follows that the conduct of all three union officials is taken to have been engaged in by the Union. But does this mean that the Union contravened the Act three times?

73    The Union’s argument to the contrary is based on a line of authority which begins with Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338, a decision of Charlesworth J. That case was concerned with contraventions of the FW Act and, relevantly, the effect of s 793 of the Act. The other authorities upon which the Union relied are Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra’s Edge Case) [2016] FCA 772 at [15]–[20] (Jessup J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 (The Carrara Case) at [4]–[25] (Reeves J) and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) (2018) 260 FCR 564 at [95] and [113] (Bromberg J).

74    Section 793 of the FW Act is in relevantly identical terms to s 94 of the BCIIP Act.

75    In Robinson at [48]–[50] Charlesworth J said:

Section 793 does not, of itself, fix upon a body corporate liability for contraventions found to have been committed by its officers, employees or agents. Rather, it attributes to the body corporate the conduct and state of mind of its officers, employees and agents in prescribed circumstances. The question of whether the body corporate has contravened the FW Act (and, if so, on how many occasions) must be answered by assessing the facts, namely the conduct and state of mind attributed to the body corporate, against the elements of the contravention said to have been committed by it.

… The mere fact that two employees of the CFMEU have each contravened the FW Act does not of itself, demand the conclusion that the CFMEU is liable for two contraventions.

76    In that case three union officials organised and encouraged employees of a construction company to refuse to attend work on one day in June 2014 to protest their dissatisfaction with the “park and ride” facilities where they left their vehicles before being transferred to the project site. In doing so, they were found, based on their admissions, to have organised industrial action within the meaning, and in contravention, of the FW Act and the unions who employed them were taken to have engaged in the same conduct by reason of s 793.

77    Her Honour found that the conduct attributed to the CFMEU by the operation of s 793(1) consisted of the conduct of the union officials and the words spoken at meetings at two park and ride facilities. After considering the union’s conduct as a whole, her Honour found (at [52]) that it organised a single instance of industrial action, namely the refusal of the employees to attend work on 19 June 2014. Her Honour explained:

On one view of the facts, it might be said that there were two physical acts of organisation conceived of as the Yarrawonga meeting and the Airport meeting, which were, I accept, separated in place, although not in time. The necessity to conduct the meetings at two places arose, however, from the fortuitous circumstance that some of the O’Rourke employees to whom the CFMEU’s organising conduct was directed parked their vehicles at the Yarrawonga Park and Ride facility while others parked their vehicles at the Airport Park and Ride facility.

78    Her Honour went on to say (at [53]) that, in reaching this conclusion, she had given the word “organise” in s 417 of the FW Act “a meaning that encompasses the concept of ‘marshalling’ or ‘rallying’, which may inherently involve a number of discrete acts directed at achieving cohesiveness in a result (in this case, a single episode of industrial action)”. Her Honour held that the union had organised one instance of industrial action “through the conduct of two human actors”.

79    It is not readily apparent that her Honour would necessarily have arrived at the same conclusion had the allegation been one of engaging in, rather than organising, industrial action.

80    The Yarra’s Edge Case, on the other hand, was a case of engagement in industrial action.

81    This case was decided under the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act). Each of a number of union officials was found to have contravened s 38 of the BCII Act. Paragraph 69(1)(b) of the BCII Act relevantly provided that, for the purposes of the Act, conduct of an officer or agent of a building association acting in that capacity “is taken to be conduct of the building association”.

82    On the facts of the case, and based on the way it was conducted, Jessup J held that the Union contravened the Act only once. Significantly, the applicant pleaded that, by reason of their conduct on several occasions in February 2011, the union officials “themselves and in combination, imposed a ban, restriction or limitation on the performance of the tower crane erection work on the site and thereby engaged in building industrial action within the meaning of section 36 of the BCII Act”. This form of industrial action appears in para 7(1)(b) of the BCIIP Act. His Honour accepted the respondents’ submission that only one ban, restriction or limitation was alleged to have been imposed by each of the organisers and held that the case was conducted on this basis. At [9] his Honour said:

In one way of looking at it, the present problem has arisen because the idea of engaging in something, by reference to which s 38 operated, and the concepts of “limitation” and “restriction”, which were contained in the definition of “building industrial action”, made sense in two alternative settings, namely, that of a person who did a specific, isolated, thing on one occasion, and that of a person who participated, at various times and to various extents, in an ongoing activity, or suite of activities. Each would be sufficient to attract liability under s 38, but the treatment of a situation of the second-mentioned kind not as a single engagement but as separate engagements at each point when the person had any involvement in some relevant action would be to allege multiple contraventions, rather than a single contravention. It would, in short, be a different case.

83    Furthermore, the fact that five union organisers had engaged in this conduct did not lead his Honour to hold that the union contravened the Act five times. At [19] his Honour said that on the facts of the case “it would be artificial to regard the conduct of the [union] as having amounted to a separate engagement in industrial action in respect of the conduct of each of the five organisers concerned”.

84    Carrara related to the conduct of two CFMEU officials, who had called and conducted a series of twice daily, two-hour union meetings at the Carrara Sports and Recreation Project on the Gold Coast after the breakdown of negotiations for an enterprise agreement. The Commissioner alleged that the CFMEU and the two officials arranged the meetings to coerce the project’s managing contractor to enter into an enterprise agreement with the CFMEU on its terms, in contravention of ss 343 and 348 of the FW Act. In his pleading the Commissioner alleged that the relevant conduct was conduct which was engaged in by an officer, employee or agent of the CFMEU, within the scope of his actual and apparent authority, on behalf of the CFMEU, and “thereby is taken to have been engaged in by the CFMEU by operation of section 793 of the [FW Act]”.

85    The Commissioner submitted that since the conduct and state of mind of its officials was attributed to the CFMEU under s 793 of the FW Act, this meant the CFMEU had committed three contraventions, rather than one. That is, one contravention by its own conduct and two further contraventions, one each by the conduct and states of mind of Messrs Desmond and Watson. Reeves J rejected the submission and treated the CFMEU’s contraventions of ss 343 and 348 as “one whole contravention” relying, in part only, on the conduct of the two officials (see [20]). His Honour did so for two reasons.

86    First, the allegation of vicarious liability by reason of s 793 was an alternative allegation in the Commissioner’s pleading. The Commissioner’s primary case was that each of the CFMEU and the union officials was personally liable for the contraventions and the trial was conducted solely on that basis, with the result that the CFMEU was found liable as a principal contravener. By raising separate contraventions based on the conduct and state of mind of two CFMEU officials, his Honour said that the Commissioner was “effectively contending that the Court should now embark upon his undetermined alternative case for the sole purpose of visiting an additional penalty on the CFMEU”. At [17], his Honour described such a course as a “hypothetical trial” and “extraordinary waste of resources”.

87    Second, his Honour said at [18]–[19] that, in order to accept the Commissioner’s proposal it would have been necessary to examine the conduct and state of mind of the two union officials to see whether, if they were attributed to the CFMEU, it would be sufficient to establish all the elements of the contraventions, namely the negation of choice and the use of unlawful, illegitimate or unconscionable conduct. He observed that, at that stage of the proceedings, that course would have been very difficult, if not impossible, since the operation of the presumption in s 361 of the FW Act had made that inquiry unnecessary. In any event, his Honour considered that it was unlikely that all the critical elements could be established for reasons it is unnecessary to recount here.

88    It is his Honour’s obiter remarks upon which the respondents relied. His Honour said at [21]-[23] that, even if it had been appropriate or possible to take the course the Commissioner proposed, it would likely have resulted in the same outcome, citing Robinson and The Yarra’s Edge Case as well as Australian Building and Construction Commissioner v Harris [2017] FCA 733 in which Siopis J referred to those judgments with approval.

89    The Bay Street Case was an action brought by the Commissioner under the FW Act against the Union and two of its officers for taking “adverse action” against a building contractor contrary to para 346(b) of the Act because they engaged in industrial activity within the meaning of para 347(b) and organised action against the contractor with intent to coerce it to engage in industrial activity contrary to s 348. A person engages in “industrial activity” if, amongst other things, the person does or does not “comply with a lawful request made by, or requirement of, an industrial association” (para 347(b)(iv)) or “represent or advance the views, claims or interests of an industrial association” (para 347(b)(v)) .

90    As Bromberg J summarised the position at [2] of his reasons, the Commissioner’s case was that the Union had initiated a work stoppage in breach of the general protection provisions of the FW Act after the head contractor at a construction site refused its request to provide additional amenities for the workers there. The action was brought against the Union and two of its officers, Long and Benstead. The Commissioner alleged that, by its failure to comply with the Union’s request, the building contractor engaged in “industrial activity” within the meaning of para 347(b)(iv) or 347(b)(v). His Honour found (at [86]) that, by not making any change to site amenities in the face of the Union’s demand, the building contractor failed to comply with a lawful request made by, or requirement of, an industrial association within para 347(b)(iv) and so engaged in “industrial activity” within para 346(b) and s 348. His Honour found (at [97]) that Long and Benstead organised industrial action against the building contractor because it did not accede to their request or demand and that each had taken adverse action against the contractor in contravention of para 346(b). His Honour was satisfied (at [108]) that both Long and Benstead contravened s 348 as alleged, by organising action against the contractor with an intent to coerce it to engage in “industrial activity”.

91    His Honour then turned to consider the liability of the Union under s 793. His Honour accepted (at [113]) that the conduct of Long and Benstead is taken to have been engaged in also by the Union but, following Robinson and Carrara, considered that the conduct of the Union was “the sum of the conduct of Long and Benstead” and, consequently, held that the Union committed a single contravention of each of ss 346 and 348.

92    The Union has appealed and the Commissioner has cross-appealed. This finding is the subject of the cross-appeal.

93    The Commissioner’s argument that “a straight application of the language of s 94” means that the Union contravened s 47 three times must be rejected. On the plain words of the section, it is the conduct of the union officials which is attributed to the Union, not their contraventions. In this respect, s 94 is to be contrasted with s 92(2) of the BCIIP Act, which relevantly provides that a person who contravenes subs (1), by, for example, aiding, abetting, counselling or procuring a contravention of a civil remedy provision or being knowingly concerned in, or a party to, such a contravention “is taken to have contravened the provision”. The difference in language used in ss 92(2) and 94(1) provides an important contextual indication that Parliament did not intend to fix a body corporate with the contraventions of the officials on whose behalf they engaged in the relevant conduct but only, as the plain words of s 94(1) suggest, their conduct. Siopis J made a similar point in Harris (at [49]) with respect to s 793 of the FW Act, contrasting it with the accessorial liability provision in that Act — s 550(1), which provides that “[a] person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.”.

94    The Commissioner also relied on the Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 10 (The Royal Adelaide Hospital Case) in which Besanko J was taken to Robinson and The Yarra’s Edge Case but did not adopt the same approach.

95    The Royal Adelaide Hospital Case was the judgment on orders following Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 607. In that case the Director alleged that, during a meeting at a building site for the new Royal Adelaide Hospital, two union officials separately made threats to take action against joint venture partners involved in the construction works at the site with intent to coerce the joint venturers, through their employees who were present at the meeting, not to exercise a workplace right. Besanko J found that the allegation had been proved and held that, by making those threats, each of the union officials contravened s 343(1) of the FW Act. By reason of s 363 of the Act, which relevantly provides that action taken by an officer or agent of an industrial association acting in that capacity is taken to be action of an industrial association, his Honour observed that the actions of the union officials are taken to be the actions of the union, and therefore held that the union also contravened s 343(1).

96    In The Royal Adelaide Hospital Case, Besanko J rejected the union’s contention that the union had contravened s 343(1) only once. His Honour observed at [23]–[29] that there were four ways in which related conduct which appears to involve multiple contraventions is properly characterised as one contravention or where “the overall nature of the conduct constituting the contraventions by the individuals is such that it is a single course of conduct”. The first he characterised as “where there is undoubtedly more than one contravention by individuals, but because of the nature of the conduct and the terms of the section allegedly contravened, there is for attribution purposes, but one contravention by the party to whom the conduct is attributed”. The second is where the relevant statute gives the Court the power to treat two or more contraventions as one contravention because there is one course of conduct by the same person. The FW Act, for example, gives the Court such a power in s 557. It provides that, for the purposes of Pt 4-1 of the Act, where a court has not previously imposed a pecuniary penalty for a contravention of such a provision, two or more contraventions of certain civil remedy provisions (of which s 343 was not one) are “taken to constitute a single contravention” if they are committed by the same person and arose out of a course of conduct by that person. The third is where there are a number of contraventions within a single course of conduct. The fourth his Honour identified as the application of the totality principle.

97    Only the first is presently relevant. His Honour said at [24] that there was some support for that approach in the authorities, referring later to Robinson and The Yarra’s Edge Case, but it was “not clear support”.

98    In rejecting the union’s argument, his Honour observed at [37]:

There were two threats in this case, one by Mr Cartledge and the other by Mr McDermott. No doubt they were closely related, as I have indicated, but they remain two threats. I accept that s 363(1) of the FW Act does not in terms attribute the contraventions to the CFMEU and that it is the actions of Mr Cartledge and Mr McDermott which are attributed to the CFMEU. Nevertheless, those actions involved two threats. Once that conclusion is reached, it is not clear to me by what process of reasoning or principle a court would be entitled to say that for attribution purposes there was one contravention rather than two, or by reference to what principle a court would be able to distinguish between cases involving one contravention as distinct from two contraventions. It might be different if the words of the provision contravened made it clear that there could be only one contravention. Otherwise, in my opinion, the course of conduct or single course of conduct considerations are reflected in one of the other three approaches where applicable. I would also note it may be that the presence of s 557 of the FW Act and the limitations on its scope in s 557(2) of the FW Act bears upon the problem in the case of civil remedy provisions not referred to in s 557(2) of the FW Act. I do not think the first approach can be taken in the case of s 343(1) of the FW Act.

99    The Commissioner argued that the same analysis might be applied equally here as each of Messrs O’Mara, Smith and Bolitho admittedly engaged in action the purpose of which was to prevent or restrict persons from accessing a building site and “those distinct ‘engagements’ in ‘action’ are not capable of being rolled together into an amorphous single act”.

100    I disagree. The present case is distinguishable. In contrast to The Royal Adelaide Hospital Case, this case concerned one unlawful act, not multiple unlawful acts. The allegation the Commissioner made here was that the union officials engaged in a single unlawful picket. The unlawful picket was pleaded as a collective action in which the three union officials, amongst others, participated. The facts as agreed made out that allegation. The part each individual played in the picket was not delineated either in the pleading or the agreed facts. In substance, the actions of one were attributed to all. Those actions were said to be taken by “the picketing group”.

101    The Commissioner also relied on the remarks of Dowsett and Rares JJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 (The Perth Airport Project Case) at [97].

102    The Perth Airport Project Case concerned a blockade of about 100 protesters at a construction site apparently organised by certain officials and organisers of the CFMEU and in which they and other officials participated. The officials/organisers in question were Messrs Buchan, McDonald, Molina and Joshua. It was an agreed fact that the union had a reasonable belief that one of the subcontractors may have failed to pay some of its employees for some of their work on the site. The blockade lasted for nearly three and a half hours and prevented 145 to 150 site workers from attending work. The Commissioner alleged that the union and the officials and organisers had engaged in coercive conduct in contravention of s 348 of the FW Act.

103    The primary judge (Siopis J) upheld the respondents’ contention that the contraventions by Buchan, McDonald, Molina and Joshua, which were attributed to the union, should be treated as a single course of conduct and also held that threats made by McDonald to return the following day were also part of the same course of conduct. As I have already pointed out, and as is uncontroversial in the present case, it is not the contraventions but the conduct which is attributed to the union. His Honour did not find in terms, however, that there had been only one contravention by the union.

104    On appeal, the Commissioner argued that the primary judge should have treated the conduct of each of Buchan, McDonald, Molina and Joshua as five contraventions attributed to the CFMEU rather than as a single course of conduct. Dowsett and Rares JJ said at [96]–[97]:

The CFMEU’s five contraventions arose by reason that the conduct of Messrs McDonald (on both occasions), Buchan, Molina and Joshua, were its conduct, as the agreed facts acknowledged. The success of the blockade depended on the activities of those two officials and two organisers in organising it so that about 100 people were present and made it effective. The coercion was the more forceful because it had more people involved.

The Parliament did not enlist s 557(2) to deem that a course of conduct involving multiple contraventions of s 348 would be punishable as a single contravention for a first offender. It is important to recognise that coercion is a particularly serious form of industrial (mis)conduct. If more principal actors are involved in unlawful coercion, there is a potentially greater impact on the target. Of course, all will depend on the facts. Here, the CFMEU acted through four agents to organise and execute the blockade. Its enlistment of each agent and his conduct was a separate contravention of s 348 and each made the overall impact and effectiveness of the blockade greater. There was some overlap between the conduct of each of Messrs Buchan, McDonald, Molina and Joshua, whose acts created each contravention by the CFMEU. However, the CFMEU knew that the conduct of each of its officials or organisers, whom it deployed in effecting its coercion, would render it liable for a separate contravention of s 348.

105    In their concluding remarks their Honours excoriated the CFMEU for its conduct. At [102] their Honours said:

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.

(Emphasis added.)

106    The issue to which these remarks were directed was not the issue in the present case. In that case it is clear that the Court, both at first instance and on appeal, considered that the union was fixed with five contraventions. The primary judge treated them as a single course of conduct, a course with which North J agreed, but with which Dowsett and Rares JJ strongly disagreed. It provides no answer, or at least no direct answer, to the question whether in the present case the Union contravened s 47 of the BCIIP Act once or three times.

107    As a matter of judicial comity single judges of this Court are expected, if not obliged, to follow decisions of other single judges of the Court concerning the same legal issue, particularly questions of statutory construction, unless they consider the decisions to be “plainly” or “clearly” wrong: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 at [83]–[89] (Greenwood J), Sundberg J agreeing at [1]. French J observed in Nezcovic v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 190 at [52]:

Judicial comity does not merely advance mutual politeness between judges of the same or co-ordinate jurisdictions. It supports the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is not likely to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction.

108    The Commissioner argued that the approach taken in Robinson and the cases that followed it was plainly wrong.

109    The threshold is a high one and the Commissioner’s argument did not reach it. Indeed, it amounted to little more than an assertion. In BHP Billiton at [86] Greenwood J observed:

In cases where a party advised and represented by experienced senior counsel properly discharging the duty owed to the Court urges upon the Court the merits of the reasoning of the authority in the resolution of the immediate case, it would be difficult to conclude that the authority is “plainly wrong” notwithstanding that a judge might reach an entirely different view of the proper construction of the provision against the background of the facts found and thus conclude that the early authority is wrongly decided. There is a distinction between concluding a decision is wrongly decided and a conclusion that an earlier authority is “plainly wrong” and thus ought not to be applied and followed.

110    Earlier, at [83] his Honour said:

The circumstances in which a judge in the exercise of the Court’s original jurisdiction might find a decision of a single judge of the Court to be “plainly wrong” should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry.

111    The Commissioner made no attempt to demonstrate that the reasoning in Robinson was affected by such an error and I am not satisfied that the reasoning in Robinson was plainly or clearly wrong.

112    Further, I reject the Commissioner’s contention that he alleged in his pleading that the Union had contravened the BCIIP Act three times. The allegation he made was at [58] of the amended statement of claim. It reads:

In the premises, the CFMMEU is liable for all contraventions of section 47 of the BCIIP Act, committed by O’Mara, Smith and Bolitho, as pleaded in the amended statement of claim.

It seems to me that this simply begs the question. It is at least ambiguous.

113    Having regard to the way in which the case was pleaded and on the basis of the facts as agreed and found, I find that there was one contravention by the Union through three of its officials acting in concert. The picket was pleaded as a collective action of up to 20 individuals. It was “the picketing group” that was alleged to have engaged in the conduct and it was “the picketing group” that was found to have done so. No distinction was drawn between the activities of any members of the group. Each of the three union officials contravened s 47 by engaging in the picket and it is their conduct which is attributed to the Union by s 94, not their contraventions. As in The Yarra’s Edge Case, it would be “artificial” to regard the conduct of the Union as “a separate engagement” in respect of the conduct of each of the union officials. There was only one picket. The Union did not engage in the picket three times. Rather, since it is taken to have engaged in the conduct of the officials, it, too, contravened the Act by engaging in an unlawful picket.

The size of the Union

114    The Union is a large organisation, covering a number of disparate industries with branches across Australia.

115    In The Queensland Infrastructure Case, the Full Court observed at [105]:

Where the defendant is a body corporate, the size of the body does not of itself justify a higher penalty than might otherwise be imposed: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 at 559-561 [89]-[92]. The size of the corporation may, however, be particularly relevant in determining the size of the pecuniary penalty that would operate as an effective deterrent. The sum required to achieve that object will generally be larger where the company has vast resources: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; (2005) 215 ALR 301 at 309 [39]; Australian Competition and Consumer Commission v Apple Pty Limited [2012] FCA 646 at [38].

116    Doubtless the purpose of Mr Andersen’s affidavit was to put before the Court evidence of the Union’s resources. Notwithstanding his evidence, however, which concerns the financial position of the Union, the Commissioner made no submissions as to the use to which that evidence should be put. In particular, he did not submit that, having regard to the size of the Union and the resources available to it, that an especially high penalty was necessary to operate as an effective deterrent. Indeed, Mr Andersen’s evidence did not rate a mention in the Commissioner’s written or oral submissions. Mr Andersen’s evidence is 337 pages long. The Court cannot be expected to trawl through it to see what to make of it without assistance from the parties and especially from the party relying on it.

Involvement of senior officers

117    Senior officers of the Union were involved in the contravention. Two of the three union officials were senior officers of its ACT Divisional Branch. Mr O’Mara was the Secretary, Mr Smith the Assistant Secretary. Mr O’Mara was also a member of the National Executive of the Construction and General Division and one of its trustees.

Previous contraventions

118    It could certainly not be said that the Union has “a culture of compliance”. The Union has a long record of contravening industrial laws. The respondents submitted that the ACT Branch was in a different position and I will deal with that submission in due course.

119    Without objection, I received into evidence a 77-page document containing, in tabular form, the history of contraventions of industrial laws by the CFMEU and the Maritime Union of Australia (MUA) before their amalgamation, as well as penalty orders made against the CFMEU in 2004 and 2013 for contraventions of s 45D (secondary boycotts) of the Trade Practices Act 1974 (Cth) and the Competition and Consumer Act 2010 (Cth) respectively. That document was admitted into evidence as Exhibit B. In each case penalties were imposed on both the unions and on union officials.

120    Exhibit B included references to 158 judgments in which penalties had been imposed on the CFMEU or Union and eight in which penalties had been imposed on the MUA for contraventions of the FW Act and its predecessor, the Workplace Relations Act 1996 (Cth) (WR Act), and the BCII Act, and also for contempt of court arising out of breaches of undertakings. Only one of the contraventions was concerned with the ACT. That related to conduct occurring on one day in February 2005. An agreed (single) penalty of $10,000 was imposed on the CFMEU for one contravention of each of paras 298S(2)(a) and (b) of the WR Act for advising, encouraging or inciting a business to take discriminatory action against a number of painters because they were not members of the CFMEU and for threatening to take industrial action against the business with intent to coerce the business to refuse to make use of their services: Alfred v Lanscar [2007] FCA 1001; 167 IR 320 (Buchanan J).

121    Not all prior contraventions will necessarily be relevant or relevant in the same way. Much depends on the nature of those contraventions, the time they occurred and in some instances the circumstances in which they occurred. Previous contraventions of a generally similar kind will be particularly relevant, but even conduct of that kind can lose some or all of its significance if it is remote to the time of the instant contravention. See Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160; 140 ALD 337 (FWBII v CFMEU) at [51]–[52] (White J).

122    Like the Full Court in The Non-Indemnification Personal Payment Case at ([23]), I do not propose to take into account the contraventions of the MUA. Since the MUA was “a separate and distinct organisation”, its conduct is irrelevant.

123    The Union submitted that prior contraventions of a different character should not be considered either as relevant prior contraventions or relevant prior conduct, citing two authorities: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317; 164 IR 375 at [67] (Le Miere J) and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426; 177 IR 61 at [44] (Tracey J).

124    In Leighton at [67], Le Miere J said that it was “not appropriate” to consider all contraventions of industrial legislation by any branch of the union anywhere in Australia that is of a different character than the contravening conduct in question and are contraventions of different legislation.

125    In Stuart-Mahoney at [44] Tracey J was specifically considering whether similar previous conduct had occurred. His Honour said:

This consideration is derived from the decision of Branson J in Coal & Allied Operations [Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714; 94 IR 231; 47 AILR 4-215]. In the present case, the applicant invites the Court to have regard to previous contraventions by the CFMEU of the WR Act in determining the appropriate penalty for the CFMEU’s contraventions of the BCII Act. Similar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions. Conduct which is of a different character does not assist this assessment see: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 at [67]. Similar conduct which has been found to contravene other legislative provisions will have potential relevance. In this case, any previous contraventions of the provisions of Pt 9 of the WR Act which relate to unlawful industrial action and coercion are relevant in determining the appropriate penalty.

(Emphasis added.)

126    None of the contraventions by the Union listed in Exhibit B involved the BCIIP Act. But similar conduct which has been found to contravene other legislative provisions is certainly relevant. As Jessup J observed in Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548; 182 IR 327 (Williams (No 2)) at [15], it is clear that the considerations listed by Branson J in Coal & Allied were not intended to be exhaustive and her Honour’s judgment cannot be read so as to imply that contraventions of different parts of the same Act or of different Acts could not be relevant to penalty in appropriate circumstances. I also respectfully agree the observations of Jessup J in Williams (No 2) at [16] that “[t]here is, however, no reason, in point of principle or of policy, why contraventions, of themselves having the potential ‘to show whether the instant [contravention] is an uncharacteristic aberration or whether the [respondent] has manifested in his commission of the instant [contravention] a continuing attitude of disobedience of the law’, should be excluded from consideration simply because they arose under legislation different from that presently before the court”. What matters, is “the quality of the conduct in each case” and the relevance of that conduct to the norms of industrial behaviour which the relevant legislation seeks to establish or support. See, too, FWBII v CFMEU at [54].

127    In Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 at [141] Logan J observed that the position taken by Le Miere J in Leighton was inconsistent with the statement by the High Court in Veen v R (No 2) (1988) 164 CLR 465 at 477 that “the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed”. Logan J said that no different principle applies to past contraventions in civil penalty proceedings under the WR Act. That said, I do not understand his Honour to have been suggesting that all past contraventions are entitled to the same weight.

128    In any event, here, a significant number of the Union’s prior contraventions related to conduct of a similar character to unlawful picketing under s 47 of the BCIIP Act.

129    In Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818; 198 IR 312; 62 AILR 101–213 (item 119), for example, an agreed penalty of $9,000 was imposed on the CFMEU arising out of industrial action (which included threats, pickets and protests) taken with intent to coerce subcontractors at the Patricia-Baleen Gas Plant site to enter into certain agreements.

130    In Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2012] FCA 966; 224 IR 457; 64 AILR 101–721 (item 85), Buchanan J imposed penalties totalling $40,000 against the CFMEU for two contraventions of s 44 of the BCII Act. Amongst other things, an official of the union had organised and engaged in a blockade at a building site and later arranged for workers to attend a picket on the site. Penalties were imposed on the CFMEU and union official for two contraventions each of s 44 of the BCII Act.

131    Item 20 is another example. It was the subject of The Non-Indemnification Personal Payment Case. The conduct occurred in May 2013. On 16 May the relevant union official, Joseph Myles, organised about 20 people with approximately nine vehicles to blockade vehicle access to a building site in Melbourne, interrupting a concrete pour, after two construction companies refused the CFMEU’s request for one of its delegates to enter the site. The site was blocked until the concrete in the trucks waiting to enter the site was no longer fit to be used. The concrete that had been poured before the blockade had to be removed. Before he left, Mr Myles threatened those managing the site that they would be back the next day to repeat the exercise. Mr Myles returned the next day on his own, issuing a threat to the effect that there would be a CFMEU delegate on the site or there would be “war”. The CFMEU was ordered to pay penalties totalling $111,000 for three contraventions of s 348 of the FW Act ($71,000 for two contraventions on 16 May and $40,000 for one contravention on 17 May).

132    In Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 (item 54) Tracey J imposed on the CFMEU a total penalty of $95,000 for 42 contraventions of s 348 of the FW Act and 42 contraventions of s 355 of the FW Act in relation to a protracted campaign of unlawful industrial action by the CFMEU, the purpose of which was wholly to prevent or curtail productive work on Grocon building sites. The campaign continued for two weeks in August/September 2012 and involved the blockading of entry points to the sites.

133    Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 (item 59) involved non-protected industrial action for a week in March 2012 at a South Brisbane building site, which included obstructing access to the site and upsetting, intimidating, abusing and threatening Grocon employees and sub-contractors. Logan J imposed a penalty of $400,000 on the CFMEU for 25 contraventions of s 44 of the BCII Act.

134    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Perth Childrens’ Hospital Contraventions Case) [2017] FCA 491 (item 36) Barker J imposed multiple pecuniary penalties on the CFMEU for contraventions of ss 340, 346 and 348 of the FW Act. The salient facts, as summarised in Exhibit B, were as follows:

135    On 25 January 2013, Messrs Buchan, McDonald, Heathcote and Harris, the relevant union officials, stood together at the entrance to the Perth New Children’s Hospital site preventing between 109 and 136 employees from accessing the site and stopping work for the day. On 30 January 2013, Harris stood with other officials preventing employees from accessing the site for about 40 minutes. Harris physically prevented some employees from accessing the site. On both days employers were prevented from exercising their workplace rights to participate in a safety dispute settlement procedure. His Honour imposed a penalty on the CFMEU of $88,500 for four contraventions of s 340.

136    On 3 May 2013, Messrs Buchan and McDonald, together with other officials, occupied the site entrances preventing access to 207 employees with the intent of coercing the head contractor John Holland, to comply with their request for equal pay. His Honour imposed a penalty on the CFMEU of $44,000 for two contraventions of s 348.

137    On 18 July 2013, Messrs Noonan, Buchan, McDonald and Harris organised a blockade of approximately 400 people at the site which prevented some 45 truckloads of concrete and slurry to be poured and prevented 205 employees from working on the site with the intention of coercing John Holland to comply with their equal pay request. His Honour imposed a penalty on the CFMEU of $88,000 for four contraventions of s 348.

138    Item 7 was Parker v Australian Building and Construction Commissioner (2019) 270 FCR 39, which was an appeal from Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340 and Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082; 270 IR 165. This case relevantly concerned the obstruction by CFMEU officials to the entrance to the Barangaroo site on 24 July 2014 after disciplinary action had been taken against a CFMEU delegate by his employer. The primary judge imposed multiple pecuniary penalties on the CFMEU and union officials for contraventions of ss 50, 348, 355 and 417 of the FW Act. The penalties imposed on the union by the Full Court totalled in excess of $1,000,000.

139    There are numerous other examples.

140    The Perth Airport Project Case (item 39) involved a blockade at the entrances to the Perth Terminal 1 construction site by about 100 protesters organised and attended by six CFMEU officials. The blockade denied access to about 160 workers and prevented work on site that day. The intention of the officials was to coerce contractors on the site to comply with a lawful request to pay outstanding wages to employees of a sub-contractor. The CFMEU was required to pay a penalty of $195,000 for five contraventions of s 348 of the FW Act.

141    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Webb Dock Case) [2017] FCA 62 (item 40) Jessup J imposed a penalty on the CFMEU of $84,000 for two contraventions of s 348 of the FW Act with respect to a blockade organised by two union officials in which approximately 50 people prevented access to the Port of Melbourne expansion project with the intention of coercing the head contractor and a sub-contractor to comply with a request to enter into an enterprise agreement.

142    Item 12 was Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563. Relevantly, in that case, the CFMEU, through its officials, engaged in a campaign of blockading and obstructing entry to construction sites in order to force the BKH Group to agree to the terms of an enterprise agreement proposed by the CFMEU. An overall penalty of $237,000 was imposed on the union for breaches of ss 340, 343, 494 and 500 of the FW Act. Although the Full Court, in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9, overturned the primary judgment in part, the penalty imposed on the Union was not disturbed.

143    Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 (item 23) involved, amongst other things, CFMEU officials engaging in coercive conduct on various days in November 2013 by impeding the entry of persons to the Queensland University of Technology and Enoggera Barracks projects with intent to coerce John Holland Queensland Pty Ltd to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU. Penalties totalling $551,900 were imposed on the CFMEU for contraventions of ss 343, 417 and 421 of the FW Act.

144    Item 53 was Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 (The Red and Blue Case). In that case, on 14 June 2013, a CFMEU official threatened to put a scaffolding company out of business unless it employed a shop steward nominated by the CFMEU. On 22 June 2013, the official organised CFMEU members at a construction site to prevent the company from entering the site. On 17 July 2013, the official organised CFMEU members at another construction site to prevent the company from entering the site. Jessup J imposed a penalty of $126,000 on the CFMEU for three contraventions of s 355 of the FW Act and a suspended penalty of $84,000 for two contraventions of s 346.

145    In The Yarra’s Edge Case (item 46) Jessup J imposed a single penalty on the CFMEU of $85,000 for one contravention of s 38 of the BCII Act after five CFMEU officials formed a picket line at a building site at Docklands with the intention of coercing Grocon to employ an additional person on the crane crew and to coerce the company to accept the CFMEU’s nominated persons as employee representatives on the site.

146    Item 70 also concerned a picket (Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining & Energy Union [2014] FCA 126). Gilmore J imposed a penalty of $29,700 for three contraventions of s 348 of the FW Act. In that case a CFMEU official attended a construction site on 13 September 2012 and threatened to organise a picket unless the head contractor agreed to pay outstanding entitlements and on 17 September 2012 he carried out his threat.

147    Item 60 was Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2). In that case, on a number of days in 2013 and 2014 the CFMEU and one of its officials blockaded various entry points to the Bald Hills Wind Farm with the intention of coercing a company to make an enterprise agreement with the CFMEU and sub-contracting companies to employ a particular person. Tracey J imposed penalties on the CFMEU totalling $102,500 for one contravention of para 340(1)(a)(ii) of the FW Act, two contraventions of para 340(1)(a)(iii) and four contraventions of para 355(a).

148    Item 101 involved the CFMEU and several officials engaging in unlawful industrial action and blockades at several building sites on a number of occasions in 2008 and 2009. Marshall J imposed a penalty of $85,000 on the CFMEU for three contraventions of s 38 of the BCII Act: Gregor v Construction Forestry Mining and Energy Union [2011] FCA 808.

149    In Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556 (item 103), Tracey J imposed a penalty of $100,000 on the CFMEU for one contravention each of ss 38 and 44 of the BCII Act. In that case, the CFMEU, through various officials, established and maintained a total ban on the performance of work at the Melbourne Markets site and established and maintained a blockade of the main site entrance for some 10 days with intent to coerce Fulton Hogan to agree to the making of an enterprise bargaining agreement and/or terminate or vary an existing agreement.

150    In White v Construction, Forestry, Mining and Energy Union [2011] FCA 192 (item 108), Kenny J imposed a penalty on the CFMEU of $105,000 for one contravention of ss 38 and 43 of the BCII Act. The facts of that case were that up to nine organisers were involved in or organised industrial action on three sites for a day (strikes) and eight sites for four hours (car blockades and late attendance to work) with intent to coerce Abigroup to employ and allocate particular responsibilities to redundant employees.

151    The Union’s overall record also tends to show an attitude of indifference to the law at least on the part of its Construction & General Division.

152    The norms of industrial behaviour the BCIIP Act seeks to establish or support are evident from s 3 of the Act. Section 3(1) states that the main object of the Act is to provide an improved workplace relations framework for building work to ensure that it is carried out fairly, efficiently and productively, without distinction between interests of building industry participants, and for the benefit of all building industry participants and the economy as a whole. Section 3(2) lists the means by which the Act seeks to achieve that object. They include:

(b)    promoting respect for the rule of law;

(c)    ensuring respect for the rights of building industry participants;

(d)    ensuring that building industry participants are accountable for their unlawful conduct.

153    Most, if not all, of the prior contraventions are relevant to these norms.

154    But the respondents submitted that the contravention by the ACT Branch was aberrant. They argued that the fact that there had only been one contravention in the ACT justified placing “limited weight on contraventions of a similar nature by the Union that have not involved the Branch”. They drew attention to the comments of Kenny J in Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040; 189 IR 304 at [69]:

[T]he history referred to above shows that the Union, through its representatives at various levels around the country, has a history of engaging in coercive conduct relevantly similar to the kind in question in this case. I would not, however, accord equal weight to all parts of this history, especially having regard to the fact that not all elements of this history are to be treated as prior contraventions and many elements relate to events outside Victoria and also at a level that might be thought more indicative of local than national concern. Further, as the respondents submitted, it must be borne in mind that, from 1999 to date, the Union, whether or not considered from the relevant divisional perspective, had a considerable spread of activities – from large to small – all over the country.

155    Earlier, at [66] her Honour accepted that “an organisation that organises itself into national and state division or branches is accountable for how its representatives operate, whether at divisional or branch level”. Nevertheless, her Honour observed that the place where a prior contravention occurred and the union’s structure are “part of the circumstances to be considered when the weight to be given [to] a prior contravention falls for determination”. While her Honour noted that prior contraventions may indicate “a pattern of misconduct on the Union’s part or a culture of disregard for the law”, “circumstances may indicate that care should be taken in giving too much weight to these possibilities, particularly when it is apparent that the liability of the Union has come about through the actions of a site delegate or other local representative or member who may well be more affected by matters close at hand than any shared national interest, culture or concern”.

156    Here, the Union relied on Mr Fischer’s evidence concerning the structure of the Union. In summary, that evidence was that the National Rules of the Union provided for four divisions, one of which is the Construction and General Division, each of which is governed by its own rules. The Construction and General Division is divided into Divisional Branches, one of which is the ACT Divisional Branch. The Branch has its own funds and is a reporting unit under s 242(3) of the FWRO Act and therefore required to file reports with the Fair Work Commission in relation to its finances. The practice of the Branch is to use its own funds to meet the costs of litigation in which it is involved and “that will apply to the payment of penalties which are imposed on it in the present case”. Other branches of parts of the Union make no contribution “to such payments”.

157    The Commissioner argued that the Union’s organisational and operational structure does not limit the weight that the Court should place on its prior contraventions outside the ACT. He noted that in Williams (No 2) at [20] Jessup J considered it “almost self-evident” that prior contraventions in one state “at least have the potential” to show that a contravention in another state is not an “uncharacteristic aberration”. His Honour observed that, while it may be aberrant of the officials in one state, but it need not be aberrant of the corporation. He pointed out that both the BCII Act and the WR Act are relevantly concerned with the conduct of organisations. He felt that the deterrent effect of a penalty would be “significantly compromised” if the Court were obliged to turn a blind eye to a prior contravention merely because it occurred in a different division or branch of an organisation.

158    In Draffin at [72] the Full Court doubted the correctness of the proposition that contraventions by branches of the CFMEU in other states should not be taken into account and Kenny J did not go so far as to say this in Cahill. In John Holland at [142]–[143] the Full Court emphatically rejected the proposition. Their Honours described as “heretical” the premise underlying the proposition. They observed that a division of a branch of a federally registered industrial organisation is not a separate legal entity. Their Honours went on to say at [143]:

A past contravention of a registered organisation arising from the conduct of an official assigned to a particular Division or Branch of that organisation is just that. That is so also even if that conduct giving rise to that past contravention occurred in a State or Territory other than that giving rise to the instant case which falls for assessment of penalty. This remains the position in law even if, for its own reasons, a registered organisation chooses to administer itself in a way which affords substantial autonomy to a particular Division or Branch. That, too, is a fact relevant to take into account in deciding whether or in what amount a penalty ought to be imposed. Further, it may not necessarily be a factor which tells in mitigation. That a Division or Branch has been allowed to operate without adequate supervision may instead be a factor of aggravation in relation to the penalty to impose on the organisation.

159    The Court is bound to follow John Holland. The effect of that decision is that prior contraventions by the CFMEU may be taken into account and, at least to the extent that they are relevant, should be and that the fact that it occurred in another state or territory or was due to the conduct of union officials or employees in another state or territory might be a mitigating or an aggravating factor.

160    In FWBII v CFMEU at [58] White J, after referring to the divergent views in the authorities, expressed his view that it is incorrect in principle that a prior contravention by an organisation which is otherwise relevant should be ignored altogether or given less weight “only” because it occurred in other state and by a different branch of the organisation. Nevertheless, his Honour added that that would not preclude the possibility that evidence in a given case might suggest a proper reason for regarding a contravention committed within another branch as being of no, or less, relevance. His Honour suggested, for example, that such evidence might relate to the way in which the entity organises itself so as to make each branch autonomous or indicate that the behaviour of one branch is properly regarded as atypical of the organisation.

161    That was the position in the present case. The evidence from Mr Fisher showed that the ACT Branch had control of its own funds and would pay penalties imposed on the Union. That is a relevant consideration since it bears upon the question of specific deterrence, albeit only with respect to one part of the Union.

162    Here, too, the evidence is that the behaviour of the Branch is atypical of the Union. That said, there remains an obvious need for the Union to be deterred from engaging in contravening conduct and, in the absence of any evidence that the Branch has taken any steps to minimise, let alone eliminate, the prospect of its officials, employees or agents contravening the BCIIP Act, I would give the evidence little weight.

How serious is the Union’s contravention? What is the effect of previous contraventions on the assessment of penalty?

163    The Commissioner submitted that, “having regard to the [Union’s] approach to the law and its complete disregard for the authority of the Parliament and this Court, it is difficult to characterise [the Union’s] offending in this case as anything other than unashamedly deliberate and flagrant”. He argued that, since the repeated criticism by the Court of its history of offending has had no apparent effect on its attitude or behaviour, penalties “at the very highest end of the range permitted by the legislation” are called for, otherwise the deterrent effect of any penalties is liable to be ineffective. Consequently, he contended that the contravention in this case calls for a penalty at “either the maximum available or at the very top of the high range”.

164    It cannot be denied that the Union’s record does not entitle it to any leniency. It is evident that neither the penalties imposed in the past nor the repeated imposition of penalties has had any deterrent effect. Indeed, it is reasonable to infer that the Union takes the view that paying penalties is merely a cost of doing business. In the absence of evidence to the contrary and in the light of its appalling record, the inference is open that the Union has done nothing to encourage its officers and employees to comply with laws that stand in the way of its industrial objectives. There was no suggestion, let alone evidence, to indicate that the Union has established any systems or processes to ensure that its officers or employees comply with the law.

165    But I cannot accept that the Commissioner’s submission that the contravention in this case calls for the maximum penalty or a penalty at the top, let alone the very top, of the high range.

166    First, the picket occurred on one day at one site over three hours, resulting in a delay of only two hours’ work with relatively modest financial costs to the two affected businesses. Since, without explanation the Commissioner did not seek an order for compensation, although it was open to him to do so, it may be inferred that the damage to the businesses was not considered significant.

167    Second, in contrast, for example, to the blockades in The Perth Airport Project Case, which involved around 100 people, and The Perth Childrens’ Hospital Contraventions Case, which involved around 400, the picket in the present case was relatively small, involving only 12 to 20 people. It is true, as the Commissioner submitted, that there is strength in numbers. After all, as Ralph Chaplin put it in the ballad, Solidarity Forever: “[W]hat force on earth is weaker than the feeble strength of one?” There is no doubt that the company of others gave the individual picketers courage. But there is no evidence that anyone felt intimidated by their actions. This was a peaceful protest. While it was obstructive, it was non-violent. No-one was hurt and no property was damaged. Nor were any threats made. Indeed, there is nothing in the evidence to indicate that the union officials conducted themselves in an aggressive or intemperate manner. Given the range of unlawful conduct that can occur on a picket line, including criminal conduct, and the extent of the loss and damage sustained, the contraventions was by no means in the worst category.

168    Third, while the Union’s previous contraventions can and should be taken into account in the determination of an appropriate penalty, they “cannot be taken to lead to a penalty that is disproportionate to the gravity of the instant contravention”; the maximum is reserved for “the worst category of cases”: Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268 at [176] (Allsop CJ, Collier and Rangiah JJ). As their Honours observed in that case, also at [176], “[i]t is a fundamental principle, at the core of the judicial power to impose a penalty, that the imposition is for the contravention in question”.

169    The Commissioner argued against this principle. He contended that proportionality is irrelevant to the fixing of a civil penalty. Alternatively, he contended that the Court would not fall into appealable error by failing to take it into account and, in any event, “it does not fetter or constrain the ability of the Court to impose a penalty to achieve its deterrent effect”. The first contention was a formal one. The Commissioner acknowledged that it is not open to a single judge to adopt it. It is contrary to the authorities and flies in the face of at least four of the Full Court’s most recent judgments: The Queensland Infrastructure Case, Auimatagi, The Non-Indemnification Personal Payment Case, and Parker. In my opinion, the alternative contentions must also be rejected as inconsistent with the weight of authority.

170    In The Queensland Infrastructure Case the Full Court said at [107] that “[e]ven where the maximum penalty for the contravention is high, and the amount necessary to provide effective deterrence is large, the amount of the penalty should be proportionate to the contravention and should not be so high as to be oppressive …”.

171    In The Non-Indemnification Personal Payment Case, the Full Court observed at [22] that:

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.

172    In Parker at [340] Besanko and Bromwich JJ (Reeves J agreeing at [383]) cited these observations and went on to say at [341]–[342]:

Thus, the role of any past contraventions is to be no more than a prism through which to view the instant contravention. This enables a court to assess whether, for example, the instant contravention is an “uncharacteristic aberration”, or whether the contravener has, by the instant conduct, manifested “a continuing attitude of disobedience of the law”. If the latter, as is clearly available to be concluded in this case, the heightened need for deterrence may indicate that a more severe penalty is warranted for the instant contravention. Nonetheless, that penalty must still fall within the applicable range that is otherwise considered appropriate for that contravention. If that is not carefully observed, the contravener may suffer the fate of being sanctioned anew for past contraventions, as the above quote from Veen (No 2) makes clear is not permitted.

Veen (No 2) also provides valuable guidance as to the role of the maximum penalty. The High Court’s observations at 478 make it clear that the maximum penalty is reserved for contraventions falling within the worst category of cases for which that penalty is prescribed. This does not require characterisation as the worst possible case. However, a case is not in the worst category merely by reason that the contravener has a history of prior contraventions, although that history may assist in the proper characterisation of the instant contravention. Considerable caution may be required to avoid blurring this distinction. This is especially so when, as in this case, past contraventions are many in number, extend over a protracted period of time and the legislature has not seen fit to provide greater penalties for second and subsequent contraventions.

173    The Commissioner’s alternative contention that proportionality “does not fetter or constrain the ability of the Court to impose a penalty to achieve its deterrent effect” was said to be “quite similar to the approach” taken by Snaden J in Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654; 291 IR 286, currently the subject of an appeal scheduled for hearing at the end of this month. Relying on Pattinson, the Commissioner argued that taking into account prior contraventions in assessing the gravity of the instant contravention “does not necessarily involve double punishment and a lack of proportionality”.

174    In Pattinson there was “a single instance of conduct”, constituted by “a single statement” (see especially [113]) made by a union delegate, Mr Pattinson, in the presence of two workers. The statement amounted to a representation to each of the workers that, in order to do the work they were sent to the site to perform, they had to become members of an industrial association (the Union). The representation was found to be false and/or misleading. Mr Pattinson was found to have either known it was false and/or misleading or to have been reckless as to whether it was.

175    Notwithstanding what was said in the judgments to which I have just referred, Snaden J considered (at [82]) that, in assessing the nature, character and seriousness of the Union’s agreed contraventions, a court was entitled to have regard to its history of contravening conduct. In his Honour’s view, that approach was endorsed by 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. He also expressed the opinion (at [63]) that Parker does not “[represent] the law as it presently stands”. His Honour said that he was minded to impose on the Union two penalties, each set at the maximum sum of $63,000, but, having regard to the course of conduct principle, he reduced the sum to the equivalent of a single maximum penalty, a penalty he described (at [117]) as “a proportionate response to the Union’s wrongdoing”.

176    In The Broadway on Ann Case, however, the majority merely assessed the gravity of the instant contraventions through the “prism” of the Union’s lengthy record. That was an orthodox approach. It was not inconsistent with Parker. Like Bromberg J (see The Bay Street Case (No 2) at [19]), I respectfully disagree with Snaden J’s opinion about the current state of the law.

177    Finally, contrary to the submission of the Commissioner, the fact that s 81(6) of the BCIIP Act requires the Court to take into account all relevant matters, including whether the contravener has been found by a court to have engaged in any similar conduct, makes no difference. It is certainly no reason why the principles enunciated in Parker (and the other cases upon which I rely) do not apply with equal force in the instant case.

The assessment

178    The respondents submitted that the appropriate range is 30% to 50% of the maximum ($63,000 to $105,000). In my opinion, taking all relevant matters into account and viewed through the prism of the Union’s record, the contravention warrants a penalty in the mid, not the high, range. Taking all relevant matters into account including the heightened need for deterrence, I would impose on the Union a penalty of $126,000, which is 60% of the maximum. Anything higher would be disproportionate to the gravity of the contravention, give no credit to the Union for its cooperation with the regulator and its admissions, and effectively penalise it, not merely for the conduct the subject of the present contravention, but also for previous conduct for which it has already been penalised.

179    If I am wrong in the view I take on the number of contraventions committed by the Union and the correct view is that there were three, not one, I would still make a single civil penalty order against the Union, as the contraventions are founded on the same facts: see BCIIP Act, s 84(1). In these circumstances it would be open to the Court to impose a higher penalty, since the effect of s 84(2) is that the maximum penalty is three times the maximum for a single contravention. But I would not be inclined to impose a penalty of that order in this case. In my opinion, the conduct involved in the picket, even when viewed through the prism of the Union’s record, does not warrant it. To do so would involve penalising the Union three times for the same conduct. Rather, I would still impose a penalty of $126,000.

The union officials

180    Mr O’Mara has been an officer and employee of the CFMMEU since February 2007. Mr Smith has been an officer and employee of the CFMMEU since April 2007. Mr Bolitho has been an officer and employee of the CFMMEU since July 2016.

181    This is Mr Bolitho’s first contravention. The same cannot be said of either Mr O’Mara or Mr Smith. Both were found by the Federal Circuit Court to have contravened the FW Act: Commissioner of the Australian Building and Construction Commission v Hall [2018] FCCA 3532, Mr O’Mara on two occasions at two building sites, on 21 August 2013 and on 11 March 2014, and Mr Smith on one occasion at one building site, on 30 October 2013. Furthermore, unlike Mr O’Mara or Mr Smith, Mr Bolitho is not a senior office-holder.

182    No evidence was adduced concerning the financial position of any of the three men to suggest that a penalty at the high end was necessary in order for it to operate as an effective deterrent or that they could not afford to pay any penalty it was open to the Court to impose.

183    In Hall, Mr O’Mara was found to have contravened s 497 of the Act by failing to comply with a request of the occupier of the site to produce his entry permit for inspection; s 499 by failing to comply with a reasonable request of the occupier of the other site to comply with an occupational health and safety requirement (that he had to be accompanied by another person on the site); and s 503(1) by taking action at the second site (by asserting that he could enter the site unaccompanied) reckless as to whether the impression was given that he was authorised to do so.

184    Mr Smith’s contraventions were of ss 499 and 500 of the FW Act. He was found to have contravened s 499 by “wandering off” on his own in contravention of a request made by the site manager that they “stay together”. The contravention of s 500 involved acting in an improper manner as the holder of an entry permit by swearing and acting aggressively towards the site manager, which amounted to “a degree of disrespectful braggadocio, which had no place on a building site”.

185    No determination has yet been made on the question of penalties, the Court reserving its decision on 30 January this year.

186    With respect to both Messrs O’Mara and Smith, the Commissioner argued that the contraventions warrant penalties “in the high range”. He submitted that each engaged in premeditated, deliberate and sustained contraventions of the BCIIP Act which “involved arguably the most serious and disruptive form of actions an industrial participant can take or organise”. He contended that they “assumed coordination roles in respect of those actions”. He pointed to the fact that each has previously contravened the FW Act. The Commissioner submitted that Mr Bolitho’s contravention should attract a penalty in the mid-range, pointing to the fact that his contravention was confined to the physical acts of obstructive picketing and to an absence of prior contraventions.

187    While I accept that the penalty for Mr Bolitho’s contravention should be less than the penalties for the contraventions of the other two union officials, I do not accept that their contraventions justify the imposition of penalties in the high range. For the reasons given earlier, the proposition that the conduct of Messrs O’Mara and Smith “involved arguably the most serious and disruptive form of actions an industrial participant can take or organise” is hyperbolic and must be rejected.

188    In determining the appropriate penalties for the union officials, in addition to their conduct in the picket I take into account the following matters.

189    In contrast to the Union, none of the union officials has a prior contravention in respect of similar previous conduct or, indeed, any prior contravention of the BCIIP Act, the FW Act or their predecessors. As the respondents pointed out, the Commissioner’s contention that Messrs O’Mara and Smith have relevant prior contraventions is incorrect. Putting to one side the dissimilarities between the conduct in which they engaged on the respective occasions, they were not found to have contravened any industrial legislation before the picket took place. The judgment in Hall was not published until 7 December 2018 — seven months after the contravening conduct in the present case. Nevertheless, the respondents acknowledged that that conduct may be taken into account, at the same time pointing out that it occurred four years earlier. As Jessup J observed in Williams (No 2) at [27], the governing principle here is the same as it is in criminal sentencing. King CJ summarised the relevant principles in R v McInerney (1986) 42 SASR 111 at 111–3:

[T]here is no rule of law which precludes a sentencing court from taking into account in an appropriate way and for appropriate purposes offences in respect of which there has been a conviction between the time of the offence for which the sentence is being imposed and the time of sentence, whether those offences have been committed before or after the current offence.

…

Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record: Director of Public Prosecutions v Ottewell (1968) 52 Cr. App. R. 679.

The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.

190    Having taken all relevant factors into account and weighed them in the balance, giving due weight to the need for deterrence, I consider that Mr Bolitho should pay a penalty of $8,400, being 20% of the maximum, and Mr O’Mara and Mr Smith $12,600 each, being 30% of the maximum.

Should personal payment orders be made?

191    The final bone of contention concerns the Commissioner’s application that the three union officials pay the penalties imposed upon them personally. The order he seeks is in the following form:

That each of [O’Mara, Smith and Bolitho] pay the penalties imposed upon on them (Penalties) personally in that they must not whether before or after the payment of the Penalties:

(i)    seek to have or encourage the [Union] in any way whatsoever, directly or indirectly, to pay to them or for their 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

(ii)    accept or receive from the [Union] in any way whatsoever any money or financial benefit referable to the payment of the Penalties (whether in whole or in part).

192    In the amending originating application the Commissioner asserts, in effect, that the source of the power to make such orders is s 81(6) of the BCIIP Act or s 23 of the FCA Act.

193    The respondents deny that there is power to make such an order and, in the event that there were, the Court should decline to exercise it in this case.

194    If there is such a power, it most certainly is not conferred by s 81(6) of the BCIIP Act or s 23 of the FCA Act.

195    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 (The Non-Indemnification Case) a five member bench of the High Court unanimously rejected the contention that s 545(1) of the FW Act empowers a judge to order that a union not indemnify a union official against a pecuniary penalty imposed on that union official. But a majority (Kiefel CJ, and Keane, Nettle and Gordon JJ in separate judgments, Gageler J dissenting) held that there was implied power under s 546 of the FW Act to make such an order. A differently constituted majority (Gageler J, and Keane, Nettle and Gordon JJ, Kiefel CJ not deciding) found that s 23 of the FCA Act did not provide another source of power.

196    Section 546(1) of the FW Act relevantly provides that:

The Federal Court … may, on application, 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.

197    In The Non-Indemnification Case at [115] Keane, Nettle and Gordon JJ held (footnote omitted) that:

Section 546 expressly confers power on the court to make an order that a person pay a pecuniary penalty. From that express conferral of power arises an implied power to make such other orders as are necessary for or facilitative of the type of orders expressly provided for. For the reasons that follow, that implied power under s 546 includes power to make an order that a contravener pay a pecuniary penalty personally and not seek or accept indemnity from a co-contravener, otherwise known as a “personal payment order”.

198    At [116]–[120] their Honours explained (footnotes omitted):

As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty’s general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d’être of its imposition.

…

Certainly, the power expressly conferred by s 546 is limited to making an order that a person “pay a pecuniary penalty”. But, as has been observed, the express grant of power carries with it implied power to do everything necessary for the effective exercise of the power to impose a pecuniary penalty; and thus implied power to make such further orders as are reasonably required for, or legally ancillary to, the accomplishment of the deterrent effect that the penalty is calculated to achieve. Thus, for example, as counsel for Myles and the CFMEU rightly conceded, where a contravener is subjected to a pecuniary penalty, s 546 imports an implied power to accomplish the effect which the penalty is calculated to achieve by ordering, say, that the penalty be paid on terms; or paid conditionally upon a specified occurrence; or paid in default of compliance with an identified requirement.

Parity of reasoning dictates that s 546 also imports implied power to achieve the effect which a pecuniary penalty is calculated to achieve by ordering that a contravener pay the penalty personally; or where, as here, joint contraveners are ordered to pay pecuniary penalties in respect of certain contraventions – each according to his, her or its relative share of responsibility for the contravention – implied power to achieve the relative degrees of sting or burden determined by the judge by ordering that neither contravener seek or accept indemnity or contribution from the other …

Given that s 546 expressly empowers the court to order a specific person to pay a pecuniary penalty, it is no stretch to accept that there is power in s 546 to make orders designed to ensure that the person against whom the order is made cannot avoid the incidence of the penalty. It is to take too narrow a view of the purpose of s 546 to regard the provision as being concerned with no more than that an amount of money be paid by someone in discharge of a debt created by order of the court. Section 546 is not about the creation and collection of debts; it is about penalising a contravention of the law. It is to take too narrow a view of the extent of the power conferred by s 546 to deny that it extends to the making of orders designed to ensure that a particular person cannot defeat the purpose of an order that the person pay the penalty imposed on him or her.

(Emphasis added.)

199    Similarly, Kiefel CJ held at [41]–[44] that it was a necessary implication of the power to impose a penalty on a person that there is also a power to make an order that the payment be made by that person, particularly having regard to the deterrent purpose of pecuniary penalty orders. Her Honour observed at [44] that:

[A personal payment order] brings home to that person the reality of a pecuniary penalty which is critical to the attainment of the deterrent effect which is the very point of the penalty. It seeks to accomplish the purpose for which the power is given by s 546(1) within the limits of what is necessary to its effective exercise.

200    The only potential source of power in the BCIIP Act is s 81(1). It will be recalled that it gives the Court the power on application to make one or more of the following orders relating to a person (the defendant) who has contravened a civil penalty provision:

 (a)    an order imposing a pecuniary penalty on the defendant;

(b)    an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;

 (c)    any other order that the court considers appropriate.

201    It necessarily follows from the decision in The Non-Indemnification Case that para 81(1)(c) is not a source of power. But what about para 81(1)(a)?

202    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 the Commissioner submitted that the reasoning of the majority in The Non-Indemnification Case about the scope of the power conferred by s 546 of the FW Act applies equally to para 81(1)(a) of the BCIIP Act:

Section 81(1)(a) provides for an order to be made imposing a pecuniary penalty “on the defendant”. Section 81(1)(a), on its terms, therefore makes it as equally clear as s.546 of the FW Act that it is upon the defendant that the consequence of an order to pay a pecuniary penalty is visited. Further, a civil penalty imposed by s.81(1)(a) of the BCIIP Act ought have no less an object of deterrence as does s.546.

Section 81(1)(a) imports an implied power to achieve the effect which the pecuniary penalty is calculated expressly by that section to achieve, that is, for the individual defendant to feel the sting or burden of the consequence of contravening a provision of the BCIIP Act.

203    O’Callaghan J said at [61] that he was “inclined to think that there is force in the Commissioner’s submission”. I am similarly inclined. In The NewCold Picket Case O’Callaghan J’s remarks were obiter because his Honour decided against making a personal penalty order. But I have come to a different conclusion in the present case.

204    In the present case the respondents accepted that the statutory purpose of the penalty scheme in the BCIIP Act is relevantly the same as that in the FW Act. But they pointed to a difference in the words used, arguing that s 546(1) of the FW Act empowers the Court to “order a person to pay a pecuniary penalty” whereas para 81(1)(a) of the BCIIP Act empowers the Court to “make an order imposing a penalty”. They contended that this was a “not insignificant” distinction because imposing a penalty renders a person liable for it and says nothing about who should pay it. On the other hand, they submitted, an order that a person pay a penalty can involve the imposition of a personal obligation to make the payment.

205    I am not persuaded by the respondents’ submissions. The distinction they seek to draw is a distinction without a difference. Section 546(1) of the FW Act gives a court the power to order a person to pay a pecuniary penalty. Paragraph 81(1)(a) of the BCIIP Act gives a court the power to impose a pecuniary penalty on the defendant, being the person who has contravened a civil penalty provision. That power is only exercised by the making of an order that the person pay the penalty. There is no substantive difference between the two provisions. The reasons given by the majority in The Non-Indemnification Case for holding that there is power in the FW Act to make a personal payment order of the kind sought in the present case apply equally to the BCIIP Act.

206    The remaining question is whether the power should be exercised here.

207    The respondents argued that an order was not justified in the present case since none of the matters raised by the Commissioner is persuasive and none of the factors which have previously led to the making of such orders arises here. The respondents referred to three authorities: The Non-Indemnification Personal Payment Case at [40]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Castlemaine Police Station Case No 2) [2020] FCA 202 at [39] (Anastassiou J); and The NewCold Picket Case at [62].

208    As I have already observed no such order was made in The NewCold Picket Case. Nor was it made in the Castlemaine Police Station Case. In The Non-Indemnification Personal Payment Case the Full Court said at [40]–[41]:

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.

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.

209    None of the union officials in the present case has a record like that of Mr Myles. Before the findings were made in The NewCold Picket Case, Mr Myles had contravened the FW Act on five previous occasions 2010, 2012, 2013, 2014 and 2015: see [24].

210    On the other hand, all the other factors to which the Full Court referred in The Non-Indemnification Personal Payment Case are present here. None of the men expressed contrition or gave any indication that he would not reoffend if the opportunity arose again. Unless the burden is imposed on them, they will not feel any sting of the Court’s orders. As long as the union officials can look to the Union to pay the penalties or reimburse them, they have little incentive not to reoffend. Requiring them to pay the penalties personally serves as a deterrent, not only to them but also to others in similar positions. It will bring home to them that they cannot act in contravention of the Act secure in the knowledge or belief that the Union will pick up the tab.

211    Consequently, I propose to make the orders the Commissioner seeks. They are in the same form as those made 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.

212    If any of the union officials needs time to pay, he may make such an application.

Further orders

213    The Commissioner also seeks an order that the penalties be paid to the Commonwealth within 28 days. The respondents did not oppose the order and I see no reason why I should not make it.

214    The amended originating application did not seek an order for costs and neither did the Commissioner’s minute of proposed orders which was annexed to their written submissions. Accordingly, there will be no order for costs.

Associate:

Dated:    28 July 2020

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