Federal Court of Australia

Australian Building and Construction Commissioner v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2020] FCA 1619

ORDERS

THE COURT DECLARES THAT:

1.    The Court declares that, for the purposes of s 550(2) of the Fair Work Act 2009 (Cth) (FW Act), the second respondent (Stegic) was directly or indirectly, knowingly concerned in, or party to each contravention of s 417 of the FW Act by one or more of the employees of Nilsen (NSW) Pty Ltd (Nilsen) engaged to undertake electrical work at the SMTF Site (the Nilsen Employees) who engaged in a stoppage of work on 17 and 18 October 2016 at the Sydney Metro Trains Facility Site (SMTF Site) before the nominal expiry date of the Nilsen (NSW) Pty Ltd Construction Enterprise Agreement 2015 - 2018 (Nilsen Agreement) had passed and, as a result, by s 550(1) of the FW Act, Stegic contravened s 417 of the FW Act by:

(a)    having been aware, or having ought to have been aware, that the Nilsen Agreement covered the Nilsen Employees and had not reached its nominal expiry date or, alternatively, having been aware, or having ought to have been aware, that the employment of the Nilsen Employees was covered, or likely to be covered, by an enterprise agreement which had not reached its nominal expiry date;

(b)    attending the lunch shed and the induction room on the SMTF Site and meeting with Nilsen Employees engaged in a stoppage of work on 17 October 2016;

(c)    refusing management from speaking with the Nilsen Employees in the lunch shed where the Nilsen Employees engaged in a stoppage of work on 17 October 2016;

(d)    standing in the entrance of, and blocking the entry of management to, the lunch shed where the Nilsen Employees engaged in a stoppage of work on 17 October 2016;

(e)    saying to the Nilsen Employees who had engaged in a stoppage of work on 17 October 2016 that they "did not have to work" and "will be paid" for the stoppage; and

(f)    attending the lunch shed on the SMTF site on 18 October 2016 when the Nilsen Employees were directed to return to work and the Nilsen Employees failed or refused to work as required and remained in the lunch shed.

2.    The Court declares that, for the purposes of s 550(2) of the FW Act, the third respondent (Hopper) was directly or indirectly, knowingly concerned in, or party to each contravention of s 417 of the FW Act by one or more of the Nilsen Employees to engage in a stoppage of work on 17 and 18 October 2016 at the SMTF Site before the nominal expiry date of the Nilsen Agreement had passed and, as a result, by s 550(1) of the FW Act, Hopper contravened s 417 of the FW Act by:

(a)    having been aware, or having ought to have been aware, that the Nilsen Agreement covered the Nilsen Employees and had not reached its nominal expiry date or, alternatively, having been aware, or having ought to have been aware, that the employment of the Nilsen Employees was covered, or likely to be covered, by an enterprise agreement which had not reached its nominal expiry date;

(b)    attending the lunch shed and the induction room on the SMTF Site and meeting with Nilsen Employees engaged in a stoppage of work on 17 October 2016; and

(c)    actively opposing the efforts of management to get the Nilsen Employees to return to work.

3.    The Court declares that, for the purposes of s 550(2) of the FW Act, the fourth respondent (Edward) was directly or indirectly, knowingly concerned in, or party to each contravention of s 417 of the FW Act by one or more of the Nilsen Employees to engage in a stoppage of work on 17 and 18 October 2016 at the SMTF Site before the nominal expiry date of the Nilsen Agreement had passed and, as a result, by s 550(1) of the FW Act, Edward contravened s 417 of the FW Act by:

(a)    having been aware, or having ought to have been aware, that the Nilsen Agreement covered the Nilsen Employees and had not reached its nominal expiry date or, alternatively, having been aware, or having ought to have been aware, that the employment of the Nilsen Employees was covered, or likely to be covered, by an enterprise agreement which had not reached its nominal expiry date;

(b)    attending the induction room on the SMTF Site where the Nilsen Employees engaged in a stoppage of work on 17 October 2016;

(c)    opposing management from instructing the Nilsen Employees in the induction room to cease the a stoppage of work and return to work on 17 October 2016; and

(d)    standing in the entrance of, and blocking the entry of management to, the induction room where the Nilsen Employees engaged in a stoppage of work on 17 October 2016.

4.    The Court declares that the first respondent (the CEPU), by the actions or omissions of each of Stegic, Hopper and Edward in declarations 1, 2 and 3, for the purposes of s 550(2) of the FW Act, was directly or indirectly, knowingly concerned in, or party to each contravention of s 417(1) of the FW Act by one or more of the employees of the Nilsen Employees who engaged in a stoppage of work on 17 and 18 October 2016 at the SMTF Site before the nominal expiry date of the Nilsen Agreement had passed and, as a result, by s 550(1) of the FW Act, the CEPU contravened s 417 of the FW Act.

5.    The Court declares that, on 17 October 2016 Stegic, as a permit holder, contravened s 500 of the FW Act by exercising or seeking to exercise a State or Territory OHS right for the purposes of s 494 of the FW Act and rights of entry in accordance with Part 3-4 of the FW Act, and when doing so, or having done so, acted in an improper manner by:

(a)    contrary to s 498, entering the SMTF Site outside working hours;

(b)    preventing management from speaking to the Nilsen Employees when they were in the lunch shed and the induction room; and

(c)    actively opposing the efforts of management to get the Nilsen Employees to return to work.

6.    The Court declares that, on 17 October 2016, Hopper, as a permit holder, contravened s 500 of the FW Act by exercising or seeking to exercise a State or Territory OHS right for the purposes of s 494 of the FW Act and rights of entry in accordance with Part 3-4 of the FW Act and when doing so, or having done so, acted in an improper manner by:

(a)    contrary to s 498, entering the SMTF Site outside working hours; and

(b)    actively opposing the efforts of management to get the Nilsen Employees to return to work.

 7.   The Court declares that the CEPU, by the actions or omissions of each of Stegic and Hopper in declarations 5 and 6, for the purposes of s 550(2) of the FW Act, was directly or indirectly, knowingly concerned in, or party to each contravention of s 500 of the FW Act by Stegic and Hopper and, as a result, by s 550(1) of the FW Act, the CEPU contravened s 500 of the FW Act.

THE COURT ORDERS THAT:

  1.    The respondents are to pay the following pecuniary penalties for the contraventions of the FW Act:

1)    Stegic for the s 417 contravention, $2,300.

2)    Stegic for the s 500 contravention, $2,300.

3)    Hopper for the s 417 contravention, $2,300.

4)    Hopper for the s 500 contravention, $2,300.

5)    Edward for the s 417 contravention, $2,400.

6)    CEPU for the s 417 contravention, $11,500.

7)    CEPU for the s 500 contravention, $11,500.

2.    The penalties imposed for each contravention of the FW Act are to be paid to the Commonwealth of Australia within 28 days.

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

REASONS FOR JUDGMENT

ABRAHAM J

1    The applicant, the Australian Building and Construction Commissioner (ABCC) seeks declarations and the imposition of civil penalties in respect of contraventions of the Fair Work Act 2009 (Cth) (FW Act) by the first respondent, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the second respondent Antony Stegic (Stegic), the third respondent Michael Hopper (Hopper), and the fourth respondent Stewart Edward (Edward), which occurred on 17 and 18 October 2016 at the Sydney Metro Trains Facility, located at Tallawong Road, Rouse Hill (SMTF Site). Following mediation on 1 October 2019 the parties reached an agreement to resolve issues of liability and the manner in which penalty was to be dealt with. Following the mediation the applicant amended its statement of claim, as a result of the amendments, the proceedings were discontinued against the fifth respondent.

2    The ABCC, is a Commonwealth regulator of the building and construction industry appointed under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act). The ABCC is responsible for monitoring and promoting appropriate standards of conduct and ensuring building industry participants comply with designated building laws (which includes the BCIIP Act and the FW Act).

3    The respondents have admitted that there have been 10 contraventions of the FW Act which relate to stoppages of work constituting unprotected industrial action engaged in by employees of Nilsen (NSW) Pty Ltd (Nilsen Employees) on 17 and 18 October 2016 at the SMTF Site and rights of entry exercised, or sought to be exercised, by two officers, of the CEPU on 17 October 2016 at the SMTF Site.

Factual Background

4    The 10 contraventions are described in [13] of the joint submission as follows:

(a)    the Second Respondent (Stegic), for the purposes of section 550(2) of the FW Act, was directly or indirectly knowingly concerned in, or party to, the unprotected industrial action taken by one or more of the Nilsen employees on 17 and 18 October 2016 and, as a result, by s 550(1) of the FW Act, Stegic contravened s 417 of the FW Act;

(b)    the Third Respondent (Hopper), for the purposes of section 550(2) of the FW Act, was directly or indirectly knowingly concerned in, or party to, the unprotected industrial action taken by one or more of the Nilsen Employees on 17 and 18 October 2016 and, as a result, by s 550(1) of the FW Act, Hopper contravened s 417 of the FW Act;

(c)    the Fourth Respondent (Edward), for the purposes of section 550(2) of the FW Act, was directly or indirectly knowingly concerned in, or party to the unprotected industrial action taken by one or more of the Nilsen employees on 17 and 18 October 2016 and, as a result, by s 550(1) of the FW Act, Edward contravened s 417 of the FW Act;

(d)    the CEPU, for the purposes of s 550(2) of the FW Act, was directly or indirectly knowingly concerned in, or party to, the unprotected industrial action taken by the Nilsen Employees on 17 and 18 October 2016 through the actions of Stegic, Hopper and Edward, and, as a result, by s 550(1) of the FW Act, the CEPU contravened s 417 of the FW Act on three occasions;

(e)    Stegic, as a permit holder, contravened s 500 of the FW Act on 17 October 2016 by exercising or seeking to exercise a State or Territory OHS right for the purposes of s 494 of the FW Act and rights of entry in accordance with Part 3-4 of the FW Act and when doing so acted in an improper manner by:

(i)    contrary to s 498 of the FW Act, entering the SMTF Site outside of working hours;

(ii)    preventing management from speaking to the Nilsen Employees when they were in the lunch shed and the induction room; and

(iii)    actively opposing the efforts of management to get the Nilsen Employees to return to work;

(f)    Hopper, as a permit holder, contravened s 500 of the FW Act on 17 October 2016 by exercising or seeking to exercise a State or Territory OHS right for the purposes of s 494 of the FW Act and rights of entry in accordance with Part 3-4 of the FW Act and when doing so acted in an improper manner by:

(i)    contrary to s 498 of the FW Act, entering the SMTF Site outside of working hours; and

(ii)    actively opposing the efforts of management to get the Nilsen Employees to return to work; and

(g)    the CEPU contravened s 500 of the FW Act on two occasions by, directly or indirectly, being knowingly concerned in, or party to, each contravention of Stegic and Hopper of s 500 of the FW Act on 17 October by s 550(1) of the FW Act.

5    The CEPU is an organisation of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) and by reason of being so registered, a body corporate under s 27(a) of that Act. The CEPU is an industrial association for the purposes of s 5 of the BCIIP Act and s 12 of the FW Act, whose rules allow for membership by building employees for the purposes of s 5 of the BCIIP Act. Stegic, Hopper and Edwards, at all material times, were employees, organisers, officials and officers of the CEPU for the purposes of s 12 of the FW Act, and in relation to this matter were acting in that capacity, and within the scope of their actual or apparent authority as an employee, organiser, official or officer of the CEPU. Each was a permit holder for the purposes of s 12 of the FW Act and a WHS entry permit holder for the purposes of s 4 of the Work Health and Safety Act 2011 (NSW) (WHS Act).

6    The project known as the North West Rail - Operations, Trains and Systems PPP involved works in relation to the Sydney suburban rail network, at various sites including the SMTF Site. Nilsen (NSW) Pty Ltd (Nilsen) were on the project, and Nilsen Employees were performing the Electrical Work at the SMTF Site. Each of the Nilsen Employees when performing the Electrical Work at the SMTF Site was covered by the Nilsen (NSW) Pty Ltd Construction Enterprise Agreement 2015 - 2018 (the Nilsen Agreement). Stegic, Hopper and Edwards were aware, or ought to have been aware, that the employment of the Nilsen Employees was covered by the Nilsen Agreement which was an enterprise agreement which had not reached its nominal expiry date.

7    On 17 and 18 October 2016, the Nilsen Employees who attended for work were required to be present at the SMTF Site for a prestart meeting at 6.45am and to commence work by 7.00am. At about 6.30am on 17 October 2016, Stegic and Hopper entered the SMTF Site. Stegic served a Notice of Entry under s 119 of the WHS Act on the project manager of the SMTF Site. The notice stated inter alia, that “Stegic held a reasonable suspicion that a contravention of s 19 of the Work Health and Safety Act had occurred relating to the bullying and harassment of workers”. At about 6.50am Stegic gestured to the Nilsen Employees who had attended for work that day to enter into the lunch shed on the SMTF Site, and Stegic and Hopper subsequently met with them. The Nilsen Employees did not commence work as required at 7.00am and, instead, stayed in the lunch shed. Thereafter, the project site manager and others approached Stegic and Hopper and requested that Stegic and Hopper produce their entry permits, which they did.

8    Shortly after 7.00am on 17 October 2016, Tony Martin (Martin), a project manager at Nilsen, approached Stegic and Hopper at the lunch shed and Stegic said words to the effect "You know what the issue is. It's your supervisor and the guys are not going back to work"; Stegic threw his hands in the air and spoke in a raised voice and Martin requested that the conversation occur in a separate meeting room. At about 7.15am Martin had a further discussion with Stegic and Hopper during which: Stegic said words to the effect “The guys are not going back to work until Martin Fox is removed from site"; both Stegic and Hopper spoke with a raised voice; and Stegic said words to the effect "It's a health and safety issue" and "The guys are not going back to work". At about 8.00am, Mark Camilleri (Camilleri), a senior project manager at Nilsen, had a discussion with Stegic and Hopper during which: Stegic said words to the effect "Martin Fox is the health and safety risk and he has to be removed before the boys go back to work"; Stegic refused to allow Camilleri to speak directly to the Nilsen Employees in the lunch shed; Camilleri said to Stegic and Hopper words to the effect that "I need to instruct them back to work. This is not an imminent safety risk and we need to instruct our guys to get back to work"; and Stegic said words to the effect "You're not talking with the workers". During that conversation: Stegic stood at the entrance of the lunch shed and blocked the entry into the lunch shed and Camilleri and Martin wished to enter the lunch shed but could not do so as a result. Camilleri had a discussion with Stegic and Hopper during which Camilleri said words to the effect "Come on let us in. We need to instruct the guys to back to work. You know that we need to instruct the guys back to work" and Stegic said words to the effect "We have got to wait until [Edward] arrives".

9    Stegic and Hopper remained in the lunch shed with the Nilsen Employees until about 11.00am, when they moved to the induction room. At about 11.00am Edward entered the SMTF Site and presented his Federal Entry Permit and State Entry Permit upon request. Heather Blake (Blake) a human resources advisor at CPB Contractors Pty Ltd, Camilleri and Martin approached Edward whilst he was standing in the doorway of the induction room and, in the presence of Stegic and Hopper, a discussion took place during which: Camilleri said words to the effect "we need to talk to the guys, we need to instruct the guys back to work"; Edward said words to the effect "Those guys are not going back to work until Martin Fox is removed from site"; Camilleri said words to the effect "We need to talk to the guys, we have to talk to the guys it is our right to talk with the guys. We need to explain to them their rights. We need to explain to them that they have to go back to work and that the action they are taking at the moment is not right"; Edward blocked the doorway which prevented access by Camilleri who wished to enter the room. Blake asked Edward to leave the SMTF Site, but he refused to do so.

10    At about 12.00 noon, the Nilsen Employees moved back to the lunch shed. Camilleri had a discussion with Edward during which Edward agreed that Camilleri could speak to the Nilsen Employees in the lunch shed. Camilleri and Blake addressed the Nilsen Employees in the presence of Stegic, Hopper and Edward. Camilleri said words to the effect "You are in breach of the dispute settlement procedure in the EBA. The action you are taking is unlawful, it's unlawful action. The action you are taking is not right, it is not correct. You have been misled on what you can do or on the action that you can take. I am instructing you guys to go back to work". Stegic said words to the effect "You guys do not have to work" and "You will be paid". Camilleri responded with words to the effect "That's not correct, there is no imminent safety threat or issue and we are instructing you back to work. You have to go back to work. You will not be paid. You have already lost four hours pay this morning". Blake said something to similar effect and Stegic responded, "No, you will be paid". The Nilsen Employees remained in the lunch shed and failed or refused to perform any work for the remainder of the work day and, at about 3.00pm, left the SMTF Site.

11    At about 3.40pm, Hopper and Edward each served a Notice of Entry under s 119 of the WHS Act by giving a copy to John Langford, the project manager of the SMTF Site, and then left the SMTF Site.

12    Blake had requested on a number of occasions that Edward and Hopper provide a Notice of Entry, but they responded with words to the effect, "Don't have time yet", "Maybe later" or "Oh yeah soon". Camilleri said to Edward words to the effect "There are policies and procedures that workers should be following a complaint of this nature such as a stoppage. For complaints of bullying and harassment there is a dispute resolution procedure under the Nilsen Agreement” and Edward replied words to the effect "No it's not. No it's not, this is not an illegal stoppage of work. The guys are being bullied and they are at risk and they are not going back to work until this is resolved". Around this time Camilleri and Martin again attempted to enter the induction room and were prevented from doing so by Edward, who placed himself in the doorway

13    During that day, Nilsen filed in the Fair Work Commission an Application for an Order to Stop etc (Unprotected) Industrial Action under s 418 of the FW Act.

14    At or around 6.30am on 18 October 2016, Stegic attended at the SMTF Site and served a Notice of Entry under s.119. At or around 6.45am the Nilsen Employees who attended for work were gathered in the lunch shed on the SMTF Site with Stegic in the lunch room with them. Martin and Blake entered the lunch shed and directed the Nilsen Employees who were there to commence work at 7.00am and those Nilsen Employees failed or refused to commence work as required and stayed in the lunch shed.

15    On the morning of 18 October 2016, in a hearing before the Fair Work Commission, the CEPU agreed to ensure that the Nilsen Employees would return to work that morning. After the hearing, at about 10.30am Martin, Blake and Camilleri entered the lunch shed where the Nilsen Employees and Stegic were located and Camilleri instructed the Nilsen Employees who were there to return to work and informed them that the outcome of the hearing before the Fair Work Commission was that they had to return to work and that they would not be paid wages for 17 October 2016 and at least four hours' pay for 18 October 2016. At or soon after 10.30am the Nilsen Employees who had attended for work that day, commenced work.

Principles

16    Sections 417 and 500 are civil remedy provisions of the FW Act, and are assigned penalties pursuant to the table at s 539 of the FW Act. The Court exercises a wide discretion when determining whether a penalty is to be imposed in respect of contraventions of the FW Act and if so, the quantum of the penalty: Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 at [28]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Cardigan St Case) [2018] FCA 957 at [51].

17    The primary purpose of any civil penalty regime is to ensure compliance with the statutory regime by deterring future contraventions: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Others [2015] HCA 46; (2015) 258 CLR 482 (DFWBII) at [24]. The principal object of an order that a person pay a pecuniary penalty is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 at [116]. Civil pecuniary penalties are “primarily if not wholly protective in promoting the public interest in compliance [with the statute]”: DFWBII at [55], [59], [68] and [110]; and see Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177 (Pattinson) at [25].

18    The process of arriving at the appropriate civil penalty involves an intuitive or instinctive synthesis of all of the relevant factors: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330; (2015) 327 ALR 540 at [6]; TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; (2012) 210 FCR 277 at [145]. Instinctive synthesis is the method by which the judge identifies all the factors that are relevant to the penalty and, after weighing all of those factors, reaches a conclusion that a particular penalty is the one that should be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (Markarian) at [37], and see [51]. Although this is the imposition of a civil penalty and therefore the features of sentencing such as retribution, denunciation and rehabilitation applied in Markarian do not apply, “the approach in Markarian remains relevant as a convenient way to express an evaluative process to which many factors may be relevant in reaching a conclusion of an appropriate penalty necessary in the circumstances for the object of deterrence, without exceeding what is reasonably necessary and thus becoming oppressive, in respect of a contravention of a kind before the court”: Pattinson at [112].

19    In common with criminal sentencing, the maximum penalty fixed by the Parliament remains a “yardstick” against which any process of assessment is to proceed: Markarian at [30]; Pattinson at [62]. The process of assessing a penalty is guided by a consideration of a number of well-accepted factors: Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 at [14], and see Trade Practices Commission v CSR Ltd [1991] ATPR 52-135 at 52,152; Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; (2008) 177 IR 306 at [65]. It is important to remember that those lists of factors are judicial descriptions of likely relevant considerations applicable to the task of coming to the appropriate penalty, and such lists are useful as long as they “do not become transformed into a rigid catalogue of matters for attention”: Pattinson at [99], and see [100].

20    As the Full Court recently summarised in Pattinson at [98]:

The court’s task is to determine and impose a penalty that it considers “appropriate” if it is satisfied that a person upon whom the penalty is to be imposed has contravened a civil remedy provision. That task is to be undertaken in the light of the object or purpose of the imposition: the promotion of the public interest in compliance with the provision of the statute in question, by deterrence, specific and general. It is clear that the object of deterrence is directed to the subject contravention. That is, it is the deterring of contraventions of the kind before the court to which regard must be had in fixing the penalty that is considered appropriate, by reference to the frame of reference or yardstick provided by the maximum penalty as set by Parliament. Thus, it will always be important to understand the nature, character and full context of the contravening.

21    It was common ground that the relevant factors in a case of this nature include:

(a)    the nature and extent of the contravention;

(b)    the circumstances in which the contravention took place;

(c)    the nature and extent of loss and damage suffered as a result of the contravention;

(d)    whether the contravener has engaged in any similar conduct in the past;

(e)    the size and nature of the contravener;

(f)    whether the contraventions involve senior management;

(g)    any contrition or corrective action taken; and

(h)    any co-operation with authorities which has been shown.

Consideration

22    Although a joint submission was filed addressing, inter alia, a number of factual matters, the approach to the principles relevant to the assessment of penalty and their application in this case, and the range of penalties said to be appropriate for each contravention, submissions were also filed by each party. Those submissions added to the matters in the joint submission, and in some instances, at least in some respects, appeared to cut across the joint submission. However, it became apparent during the hearing, properly understood, that there was no substantive departure from or inconsistency with the joint submission.

23    That said, in respect to the facts, the proceedings were based on the contents of the Amended Statement of Claim dated 1 November 2019 (Amended Statement of Claim), without any agreed statement of facts being presented as a result of the resolution of the matter. This approach, in the circumstances of this case, contributed to a difficulty in ascertaining the factual basis of each of the contraventions, and led to what appeared to be potential, though ultimately illusory, disputes as to the contents of the agreement, and the approach to be taken.

24    The primary issue of dispute that appeared to arise in these proceedings concerned the number of contraventions. It was ultimately a non-issue.

25    In the joint submission the parties accepted that Stegic, Hopper and Edward (and the CEPU by virtue of s 793 of the FW Act) were directly or indirectly knowingly concerned in, and party to a contravention of s 417 of the FW Act by one or more of the Nilsen Employees on 17 and 18 October 2016. As a result, by s 550(1) of the FW Act, Stegic, Hopper, Edward and the CEPU contravened s 417 of the FW Act see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [122]-[123]. The CEPU is liable to be penalised in respect of three contraventions, being the contraventions of the FW Act by Stegic, Hopper and Edward.

26    It is plain that an agreement was reached and the respondents admitted the contraventions referred to above. It was agreed that there was a single contravention in respect to each of the contraventions listed, with a single penalty to be imposed, with the maximum penalty to be for a single contravention.

27    The parties agreed for the purposes of fixing penalty to treat Stegic, Hopper, Edward and the CEPU as having each committed one contravention of s 417(1) of the FW Act and Stegic, Hopper and the CEPU as having each committed one contravention of s 500(1) of the FW Act. This is based on the joint submission that s 557(1) of the FW Act operates to treat each of the respondents’ contraventions of s 417(1) as having arisen out of the same course of conduct and therefore taken to constitute a single contravention and the common law course of conduct principle having a similar operation in respect of the s 500 contraventions.

28    The facts on which the respondents were to have the penalty assessed were those admitted in the amended defences to the Amended Statement of Claim. It was those facts, limited though they are, which form the basis of the assessment as to the objective seriousness of the contraventions.

29    The maximum penalty for each contravention is 60 penalty units for Stegic, Hopper and Edward, and 300 penalty units for the CEPU. Penalty units are defined in s 12 of the FW Act via reference to s 4AA of the Crimes Act 1914 (Cth). At the time of the conduct in this case (that is October 2016), the value of a penalty unit was $180. The maximum penalties applicable for each of the present contraventions of the FW Act is $10,800 for each contravention by Stegic, Hopper and Edward and $54,000 for each contravention by the CEPU.

30    The parties also submitted, by agreement, the range of penalties they said were appropriate in these proceedings. That range in respect to Stegic and Hopper for the s 417 and s 500 contraventions was $1,620-$2,700. The range in respect to Edward for the s 417 contravention was $1,620-$2,700. The range in respect to the CEPU for the s 417 and s 500 contraventions was $8,100-$13,500.

The nature and extent of the contravention, and the circumstances in which it took place

31    The contraventions relate to events on 17 and 18 October 2016, in the form of stoppages of work by the Nilsen Employees.

32    There is only limited material before the Court as to the nature of the stoppage. There are some statements in the Amended Statement of Claim that the respondents were making statements on 17 October 2016 from which it could be said that concerns were being expressed about workplace bullying. Nilsen applied for orders under s 418 of the FW Act to stop the industrial action and conciliation hearings were conducted on 18 October 2016 leading to an agreement between the CEPU and Nilsen whereby the CEPU would ensure that the employees returned to work at 10.25am on 18 October 2016.

33    The respondents initially submitted that the fact the stoppage related to a genuine safety issue ameliorates the seriousness of the conduct. Ultimately, the submission was refined so as to focus on the subjective belief or state of mind of the respondents, which it was contended could be inferred from their conduct and the statements made (as recited in the Amended Statement of Claim). The applicant took issue with that contention, and submitted there was no evidence that the stoppage of work by the Nilsen Employees was based on reasonable grounds that there was an imminent risk to their health and safety. More particularly, the applicant submitted there was no basis on the Amended Statement of Claim to draw the inference that the respondents had a genuine belief that there was a safety issue. The applicant submitted that is not the reasonable inference to be drawn and that that explanation could have been used as a guise under which industrial action was taken (as it was contended, without more, had been done in other cases). The applicant did not point to any factual foundation which would substantiate such an assertion in this matter. The applicant also submitted that the respondents’ actions were inconsistent with that inference, as there were other proper means to deal with such concerns if they had been genuine. The applicant submitted that the factor was neutral.

34    On the limited material before the Court, the applicant’s submission about the objective nature of the industrial action is correct. However, the respondents’ submission, as refined during the course of argument, related to the subjective state of mind of the respondents.

35    On the material before me, contrary to the applicant’s submission, there is no suggestion that the CEPU had used this approach as a guise in other cases. No material was pointed to in support of the submission. This is also in a context, as explained below, that there is only one previous contravention by the CEPU, which occurred in 2015. Moreover, the applicant did not challenge the contention that the contraventions were an “uncharacteristic aberration”. On the other hand, even if, at least at the outset the respondents held a genuine belief that they were acting because of a safety issue, the respondents’ submission can only go so far. It is plain that no defence was made out. The respondents, given their position, should have known better as to the approach they took. There was a procedure to be followed for such a complaint. The actions continued over more than one day.

36    The respondents also submitted that the contraventions are at the less serious end of the spectrum, as they were not “organising” industrial action but were “involved” in industrial action, referring to the description of White J in Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [227] of what constitutes being “knowingly concerned” in a contravention (which forms the basis of the respondents’ contraventions in this matter).

37    However, “organising” industrial action and being “involved” in the industrial action attract the same penalty under the FW Act. A person who is “involved” in a contravention, is taken to have contravened that provision: s 550(1). As a matter of statutory construction, there is no basis to contend that being involved in a contravention is necessarily less serious than organising, for that reason alone. The applicant’s general submission does not assist but rather distracts from the proper basis on which to impose a penalty which focuses on what was actually done by the respondents. As reiterated in Pattinson at [98], the object of deterrence is directed to the subject contravention, and consequently it is “important to understand the nature character and the full context of the contravening”.

38    I do not accept the respondents’ submission that the seriousness of the contraventions is at the lower end of the range suggested by the parties. The submission fails to reflect that the contraventions each involved a number of different and separate acts, and that the conduct continued for over a day. I also cannot accept the respondents’ submission as to the number of employees involved as it was only alleged as “one or more employees” and that is what was admitted. Although the Amended Statement of Claim does not refer to the number of employees, it is plain from its language that it was employees plural that were involved though their number is not before me.

Whether the contravener has engaged in any similar conduct in the past

39    There is no prior finding that Stegic, Edward or Hopper have engaged in similar contraventions in the past. The CEPU was found to have contravened the Building and Construction Industry Improvement Act 2005 (Cth) in respect of unlawful industrial action engaged in by employees in the electrical contracting industry in 2005. The 2005 contravention by the CEPU involved officers of its CEPU (Electrical Division) Tasmanian Branch, although as explained below, the applicant took issue with any suggestion that the fact it was the Tasmanian Branch is of any relevance. There are no other instances of similar contravening conduct. Stegic, Edward and Hopper were officers of the NSW Branch. There are no previous contraventions, of a similar nature or at all, by officers of the NSW Branch.

40    As noted above, the respondents submitted that the contraventions were an “uncharacteristic aberration”, arising from the peculiar circumstances which arose on that day, within the meaning of that phrase in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; (2018) 265 FCR 208 at [107]. That submission can be accepted.

The size and nature of the contravener

41    The CEPU is a registered industrial organisation comprising three Divisions. As at 31 December 2018, the CEPU has a total of 99,593 members across its three divisions (which are separated into geographical branches). The CEPU and each division are governed by discrete sets of rules. Each branch reports separate sets of financial reports to the Registered Organisations Commission.

42    Edward, at the time of the contraventions, held an office of the CEPU Electrical Division (NSW Branch). Stegic and Hopper, at the time of the contraventions, were employees of the CEPU Electrical Division (NSW Branch).

43    The applicant took issue with the contention that the fact that the CEPU comprises three different divisions and that the contraventions concern the CEPU Electrical Division (NSW Branch) was said to be relevant. As the applicant correctly submitted, the CEPU Electrical Division (NSW Branch) is not a separate legal entity but an internal unit within the CEPU. It is the CEPU that is the relevant respondent and not the CEPU Electrical Division (NSW Branch). In that regard reliance was placed on the observations of Jessup J in Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548; (2009) 182 IR 327 at [21] (Williams):

… How the Union – or any incorporated body – organises itself internally is a matter for its own members. Some bodies employ a highly centralised system of control. Others vest the real decision-making power in divisions, branches or, indeed, groups of members at the workplace. In the latter case, however, no less than in the former, it is the body itself which acts when the internal group or individual having generic responsibility for the relevant area of activity does something with legal consequences. In the case of trade unions, if ever there was any doubt about that proposition, it was laid to rest by Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15. And just as a union may not, by a judicious decentralisation of authority, avoid responsibility for things done by its servants or agents acting within the scope of their authority, neither, in my view, can a union (or, for that matter, any like body) by the same process render irrelevant to the matter of fixing penalties its own prior contraventions merely by reason that they were committed in some other section, division or branch of the larger body.

44    While Williams was overturned on a different point: Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2020) 191 IR 445, the reasoning in that passage is unaffected: Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2020] FCA 451; (2020) 295 IR 197 at [107].

45    That said, as noted above, there were no prior or subsequent contraventions by the individual respondents, or the NSW Branch and only one prior contravention by the CEPU by the Tasmanian Branch.

46    The respondents submitted that the evidence supports that the CEPU has sufficient means to pay any penalties imposed. It is unnecessary to recite that evidence, suffice to say on the evidence that is plainly correct.

Whether the contraventions involve senior management

47    The contraventions did not involve senior management.

Any co-operation with authorities which has been shown

48    The respondents contend that the CEPU’s co-operation with and participation in the Fair Work Commission conciliation and ensuring the employees return to work is a significant mitigating factor.

49    The respondents have also co-operated in making admissions at an early stage (at the first mediation of the matter). The applicant accepted that the respondents admitted liability in the proceedings prior to the trial which saved the parties (and the Court) the time, cost and effort associated with a trial. I find that the respondents have co-operated with authorities.

Any contrition or corrective action taken

50    Hopper is no longer employed by the CEPU. Stegic and Edwards have attended “Right of Entry” training since the agreement. The respondents submitted this shows an intent by the respondents to ensure that contravening conduct is not repeated and insight by them into the seriousness of the conduct.

51    The applicant accepted that Stegic and Edward attended “Right of Entry” training organised by the applicant on 16 December 2019 and that it is appropriate for the Court to take this into account. However, the applicant submitted that there was no basis for any suggestion of remorse or contrition by the CEPU or the individual respondents and that the respondents have not apologised for their unlawful conduct. The applicant also submitted that there was no evidence to suggest that the CEPU has done anything, or intends to do anything, to reduce or eliminate the prospect of similar contraventions occurring in the future.

52    With the exception of an apology, it is unclear what else the applicant suggests ought to have been done by the respondents. That is particularly so in a context where there was no challenge to the description of the conduct being an “uncharacteristic aberration”, where there has been no such conduct before by this branch of the CEPU or the other respondents, and these contraventions occurred in 2016 with no suggestion there has been any contraventions since that time.

53    The respondents submitted that the applicant had accepted the range of 15 to 25 per cent of the penalties was appropriate, without reference to training. It was submitted that the applicant accepted that the undertaking of training, if it occurred, would be a factor in further mitigation and therefore must accept that penalties less than the maximum of the range identified by the parties are appropriate.

54    The applicant took issue with the fundamental proposition, and submitted that the parties agreed to the range of 15 to 25 per cent of the penalties with reference to training. Nonetheless the applicant acknowledged that the training is a relevant consideration to fixing the appropriate penalty within the agreed range.

55    An acceptance by the applicant that training, if it did occur, was a mitigating fact does not, contrary to the respondents contention, lead to the conclusion that less than the maximum of the range agreed between the parties is appropriate. A range said to be appropriate has been agreed. In assessing the appropriateness, this factor of training (and what is said to flow) is one factor to be taken into account in the process. It is not a mathematical process with the penalty necessarily reduced for this factor, but, as explained above at [18], a process of instinctive synthesis.

Section 556 of the FW Act

56    There was a dispute between the parties as to the application of s 556. Again, the dispute appeared, in large part, to be a matter of semantics, rather than one which has real implications in the context of this matter.

57    Section 556 of the FW Act is as follows:

If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct [emphasis added]

58    Section 556 is directed to preventing double punishment where particular conduct that has caused a contravention of a civil remedy provision gives rise to the contravention of another law of the Commonwealth in relation to that conduct. As such it has been applied so as to impose one penalty in respect of two contraventions when the two contraventions arose from the same conduct: for example, Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; (2019) 272 FCR 290 at [14], [16], [29] and [31] (Hassett).

59    In Hassett at [14] and [16] the Court stated:

14    …Commonly and as is the fact in this case in relation to the contraventions of s 500, contravention of a civil remedy provision may be constituted by a range of conduct made up by a number of different acts or omissions. When a pecuniary penalty is imposed for a contravention, each of those acts or omissions involved in the contravention will be the subject of the pecuniary penalty if a pecuniary penalty is imposed. So much is recognised by the phrase “in relation to” in s 556. The purpose of that phrase is to make it clear that the provision is addressing “particular conduct” that is the subject of the penalty imposed, and not necessarily all of or the whole of the conduct for which the penalty was imposed. Where that particular conduct is the subject of a pecuniary penalty, s 556 requires that that particular conduct not be the subject of a further pecuniary penalty.

….

16    Hassett’s refusal to get off the crane was relevantly the “particular conduct” for s 556 purposes. That particular conduct was part of and was subsumed by, the whole of the conduct the subject of the contravention of s 500. Where that particular conduct was the subject of penalty in relation to a contravention of s 500, s 556 precluded that particular conduct being the subject of a penalty in relation to the contravention of s 499 of the FW Act.

60    The applicant relied particularly on the recent decision of Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9; (2020) 274 FCR 19 where the Court considered the principles, and discussed inter alia, Hassett. At [32]-[38] the Full Court stated:

32    After judgment was reserved in this appeal, the parties drew our attention to the subsequent Full Court judgment in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201 (Hassett). That appeal concerns contraventions of ss 499 and 500 of the Fair Work Act. Its relevant factual background and the outcome before the primary judge were summarised by the Full Court as follows (at [6]-[9]):

6    … The respondent made allegations to the effect, and the appellants admitted, that on 5 June 2017, whilst in attendance at a construction site in Devonport, Tasmania:

(i)    Hassett climbed on a crane whilst it was in operation;

(ii)    Hassett refused a request of the occupier at the site to get off the crane (which request was reasonable because it was unsafe to be on the crane whilst it was being operated—that conduct is defined in the Amended Statement of Claim as the “5 June OHS Request”); and

(iii)    Hassett used insulting language and engaged in abusive behaviour.

7    By reason of the conduct in (i), the appellants were found to have contravened s 499 of the [Fair Work Act]. By reason of the conduct in (i), (ii) and (iii), the appellants were found to have contravened s 500 of the [Fair Work Act].

8    The appellants contended before the primary judge that because Hassett’s conduct that established the contravention of s 499 (refusing the reasonable request to get off the crane) was also an element of the contravention of s 500, s 556 applied and only one penalty could be imposed on each of the appellants in relation to that particular conduct.

9    The primary judge rejected that contention. At [48]-[50] of his Honour’s reasons for judgment, the primary judge referred to the reasoning of Tracey J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211 at [40]-[43], and in essence, concluded that the conduct constituting the contravention of ss 499 and 500 was not the same conduct for the purposes of s 556 because of the more expansive nature of the conduct constituting the contravention of s 500.

33    In concluding that the primary judge had erred, the Full Court addressed three issues as follows:

(1)    the meaning of the expression “particular conduct” in s 556 of the Fair Work Act (at [12]-[16]);

(2)    what is covered by the word “conduct” in s 556 (at [17]-[26]); and

(3)    whether the penalties applied were appropriate to the two contraventions concerned (at [27]-[31]).

34    The third issue above is not pertinent for present purposes. On the first issue, the Court noted (at [15]) that the primary judge:

… construed s 556 as though “particular conduct” meant the whole of the conduct the subject of a contravention and a consequent pecuniary penalty. It was because the whole of the conduct relevant to the s 500 contravention was larger or more expansive than the conduct the subject of the s 499 contravention (Hassett’s refusal to get off the crane), that his Honour concluded that s 556 was not engaged …

35    The Full Court considered his Honour had erred in this construction. It explained that error in the following terms (at [16]):

Hassett’s refusal to get off the crane was relevantly the “particular conduct” for s 556 purposes. That particular conduct was part of and was subsumed by, the whole of the conduct the subject of the contravention of s 500. Where that particular conduct was the subject of penalty in relation to a contravention of s 500, s 556 precluded that particular conduct being the subject of a penalty in relation to the contravention of s 499 of the [Fair Work Act].

36    The reasoning the Full Court partly relied upon to reach this conclusion focused on the word “particular” in the expression “particular conduct” and the expression “in relation to”, both of which appear in s 556. With respect to the latter, it observed (at [14]) that:

… The purpose of that phrase is to make it clear that the provision is addressing “particular conduct” that is the subject of the penalty imposed, and not necessarily all of or the whole of the conduct for which the penalty was imposed. Where that particular conduct is the subject of a pecuniary penalty, s 556 requires that that particular conduct not be the subject of a further pecuniary penalty.

37    On the second issue, the Full Court adopted the reasoning of Jessup J in The Australian Paper Case at [40] (Hassett at [18]-[19]) and rejected the respondent’s argument based on common law principles of double jeopardy that his Honour’s construction of s 556 was erroneous (at [20]-[25]). On this issue, the Full Court concluded (at [26]) that:

We respectfully adopt the construction of s 556 applied in The Australian Paper Case. Contrary to the submission advanced on behalf of the respondent and with respect to Jessup J, that construction is not plainly wrong, and in our view it is correct. It accords with the plain meaning of the words by which the section is expressed and also the underlying policy considerations to which we have referred. The “particular conduct” to which s 556 refers is the constituent act or omissions that a wrongdoer has committed – that is, what he or she (or it) actually did.

(Emphasis in original)

38    We do not accept that the same conduct was relevantly pleaded in support of both contraventions. To the contrary, the conduct pleaded in the paragraphs to which the appellants have referred is, in our view, materially different as between the two contraventions. Nor do we accept that the conduct constituting the contravention of s 494 was wholly subsumed in the conduct constituting the contravention of s 343. In our view, the primary judge was well aware that there were distinct and separate components of the conduct constituting each of those contraventions. So much is apparent from his Honour’s conclusion at PJ [104] that the contraventions on 11 and 12 March 2015 should attract separate penalties because of “the very different conduct pursued by Mr Collier, in particular on 11 March 2015” and because “[t]he conduct on those two days was not the same ‘particular conduct’ for the purposes of s 556” (emphasis in original). At PJ [102], the primary judge demonstrated why that was so by summarising, by reference to various paragraphs of the liability judgment (LJ [159], [187] and [285]), the components of Mr Collier’s conduct that constituted the contraventions of s 494 of the Fair Work Act, namely purporting to exercise a State or Territory occupational health and safety right on both sites on both days when he was not a permit holder under the Fair Work Act. His Honour then proceeded, at PJ [103], to contrast that conduct with the conduct constituting the contravention of s 343 by summarising, by reference to various separate paragraphs of the liability judgment (LJ [173], [179], [182], [234] and [289]), the very different conduct that constituted that contravention, namely engaging in coercive conduct at the Rhodes site on 11 March 2015 by parking a vehicle across Gate 3 at that site and thereby obstructing the entry of cement trucks to the site. The Commissioner is therefore correct in his contention that the conduct underpinning the two contraventions was distinct and did not constitute the same “particular conduct” as that term is used in s 556 of the Fair Work Act. In our view, nothing that the Full Court said in Hassett detracts from this conclusion. To the contrary, its treatment of the reasoning of Jessup J in The Australian Paper Case at [40] is entirely consistent with it.

61    The application of s 556 of the FW Act depends in each case on the facts and circumstances of the particular contraventions.

62    The applicant submitted that s 556 of the FW Act does not apply in this case because each of the contraventions in this case is directed to and, in substance, involves different conduct. In the case of the contraventions of s 417(1) of the FW Act, the relevant conduct relates to Stegic, Hopper, Edwards and the CEPU’s involvement in the unlawful industrial action taken by the Nilsen Employees pleaded in the Amended Statement of Claim. In the case of the contraventions of s 500 of the FW Act, Stegic, Hopper and the CEPU’s conduct relates not to their involvement in the Nilsen Employees taking the unlawful industrial action but a contravention of s 498 of the FW Act by entering the SMTF Site outside working hours and their conduct directed to Nilsen in preventing and opposing management efforts to address the employees. The applicant submitted that the admitted contraventions comprise separate and distinct conduct falling outside the application of s 556 of the FW Act.

63    The respondents challenged that submission by reference to the Amended Statement of Claim. The respondents also submitted that s 556 of the FW Act will apply where there is a degree of overlap between the particular conduct giving rise to separate contraventions, referring to Hassett at [26], which is as follows:

We respectfully adopt the construction of s 556 applied in The Australian Paper Case. Contrary to the submission advanced on behalf of the respondent and with respect to Jessup J, that construction is not plainly wrong, and in our view it is correct. It accords with the plain meaning of the words by which the section is expressed and also the underlying policy considerations to which we have referred. The “particular conduct” to which s 556 refers is the constituent act or omissions that a wrongdoer has committed – that is, what he or she (or it) actually did.

64    The respondents misread Hassett. In that case, the one contravention was wholly subsumed by a second contravention such that the subsumed contravention ought not to be the subject of a penalty. Paragraph [26] must be read in that context. The respondents submitted that factual scenario is not the case here, but rather, that there was some overlap between the offending. From that it was submitted that the penalties for each offence should be at the lower end of the range available.

65    The applicant submitted, by reference to the Amended Statement of Claim, that the relevant action which gives rise to a contravention of s 417 is the industrial action taken by the Nilsen Employees and the respondents being knowingly concerned in the action. The s 500 contraventions were said to be directed to different actions, including entering the site outside hours, preventing management speaking to the employees, as opposed to taking industrial action. The respondents submitted that although the Amended Statement of Claim is less than precise about the conduct that constituted each contravention, I should be satisfied that there is substantial overlap.

66    The submission does require close attention to the Amended Statement of Claim. Again, having to rely on the Amended Statement of Claim without the assistance of an agreed statement of facts has led to unnecessary difficulty. It is, as accepted by the parties, rather imprecise and has obvious limitations. That said, there does appear to be some overlap in the contraventions, although not as substantial as described by the respondents.

67    It is appropriate to recognise that the s 417 and s 500 contraventions, by their nature are directed to fundamentally different conduct. Section 417 of the FW Act is directed to organising or engaging in industrial action (including in an accessorial capacity). On the other hand, s 500 of the FW Act is directed to prohibiting a permit holder from exercising a right of entry from hindering or obstructing others or otherwise acting in an improper manner: see for example: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 549 at [37]. In this case both of the provisions have been contravened by Stegic, Hopper and the CEPU.

68    Section 556 of the FW Act does not preclude separate penalties being imposed for different conduct, and indeed, it was not suggested that it did so in this case.

69    To the extent there is any factual overlap given the drafting of the Amended Statement of Claim, it is a factor to be taken into account in assessing the relevant penalties to ensure there is no double penalty being imposed.

Declarations

70    At the conclusion of the hearing it became apparent that the original declarations sought by the applicant, as set out in the originating application, had been superseded by the filing of the Amended Statement of Claim. The parties sought, and I granted them, additional time to confer and if agreed, provide proposed short minutes of order setting out the proposed declarations by consent. On 14 July 2020 the parties provided via email to chambers a consent position on the proposed form of the declarations.

Conclusion

71    The parties submitted that after applying the relevant course of conduct principles it would be appropriate for the Court to order that the respondents pay pecuniary penalties in the range of 15 to 25 per cent of the available maximum penalty in respect of the admitted contraventions. When considering whether an agreed range of penalties is appropriate as provided by the parties in this case (or an agreed penalty), the Court is required to “form its own view” and does not act as a “rubber stamp” to an agreement reached: DFWBII at [31]. In the context of this matter I am satisfied that it is appropriate to order the respondents to pay pecuniary penalties in the range suggested by the parties.

72    Having taken into account and weighed the relevant factors I find that the appropriate penalty sits above the middle of the agreed range proposed by the parties. I have taken into account any overlap in the factual basis of the s 417 and s 500 contraventions by Stegic, Hopper and the CEPU to ensure that there is no double penalty. There is no proper basis to distinguish between Stegic and Hopper. Accordingly I make the following pecuniary penalty orders:

(1)    Stegic for the s 417 contravention, $2,300.

(2)    Stegic for the s 500 contravention, $2,300.

(3)    Hopper for the s 417 contravention, $2,300.

(4)    Hopper for the s 500 contravention, $2,300.

(5)    Edward for the s 417 contravention, $2,400.

(6)    CEPU for the s 417 contravention, $11,500.

(7)    CEPU for the s 500 contravention, $11,500.

73    On application by the applicant, the penalties imposed for each contravention of the FW Act are to be paid to the Commonwealth of Australia within 28 days: s 546(3) FW Act.

74    I am satisfied that it is appropriate to make the declarations sought in the terms agreed by the parties.

Associate:

Dated:    6 November 2020

SCHEDULE OF PARTIES