Federal Court of Australia
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 1662
ORDERS
DATE OF ORDER: |
THE COURT DECLARES THAT:
A. On 10 December 2018, the second respondent (Buchan), being an officer of the first respondent (Union) and acting in that capacity for the purposes of s 94 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (Act), contravened s 46 of the Act by organising unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project sites at Forrestfield, Bayswater, and Redcliffe (Buchan s 46 Contravention).
B. On 10 December 2018, the third respondent (Pallot), being an officer of the Union and acting in that capacity for the purposes of s 94 of the Act, contravened s 46 of the Act by organising unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project sites at Forrestfield, Bayswater, and Redcliffe (Pallot s 46 Contravention).
C. On 10 December 2018, the fourth respondent (Molina), being an officer of the Union and acting in that capacity for the purposes of s 94 of the Act, contravened s 46 of the Act by organising unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project sites at Forrestfield, Bayswater, and Redcliffe (Molina s 46 Contravention).
D. On 10 December 2018, the fifth respondent (Touhey) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Touhey s 46 Contravention).
E. On 10 December 2018, the sixth respondent (Ali) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Ali s 46 Contravention).
F. On 10 December 2018, the seventh respondent (Barron) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Barron s 46 Contravention).
G. On 10 December 2018, the eighth respondent (Colclough) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Colclough s 46 Contravention).
H. On 10 December 2018, the ninth respondent (Cole) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Cole s 46 Contravention).
I. On 10 December 2018, the tenth respondent (Davies) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Davies s 46 Contravention).
J. On 10 December 2018, the eleventh respondent (Dickerson) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Dickerson s 46 Contravention).
K. On 10 December 2018, the twelfth respondent (Doyle) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Doyle s 46 Contravention).
L. On 10 December 2018, the fourteenth respondent (Evans) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Evans s 46 Contravention).
M. On 10 December 2018, the fifteenth respondent (Feehan) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Feehan s 46 Contravention).
N. On 10 December 2018, the sixteenth respondent (Fitzgibbon) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Fitzgibbon s 46 Contravention).
O. On 10 December 2018, the seventeenth respondent (Gill) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Gill s 46 Contravention).
P. On 10 December 2018, the eighteenth respondent (Hale) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Hale s 46 Contravention).
Q. On 10 December 2018, the twentieth respondent (Honeyfield) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Honeyfield s 46 Contravention).
R. On 10 December 2018, the twenty-second respondent (Jones) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Jones s 46 Contravention).
S. On 10 December 2018, the twenty-third respondent (Kelang) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Kelang s 46 Contravention).
T. On 10 December 2018, the twenty-fourth respondent (Kilgour) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Kilgour s 46 Contravention).
U. On 10 December 2018, the twenty-fifth respondent (Kohli) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Kohli s 46 Contravention).
V. On 10 December 2018, the twenty-sixth respondent (Lilly) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Lilly s 46 Contravention).
W. On 10 December 2018, the twenty-seventh respondent (Martinez) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Martinez s 46 Contravention).
X. On 10 December 2018, the twenty-eighth respondent (McGroarty) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (McGroarty s 46 Contravention).
Y. On 10 December 2018, the twenty-ninth respondent (Mentesana) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Mentesana s 46 Contravention).
Z. On 10 December 2018, the thirtieth respondent (Moyes) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Moyes s 46 Contravention).
AA. On 10 December 2018, the thirty-first respondent (Muller) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Muller s 46 Contravention).
AB. On 10 December 2018, the thirty-third respondent (Peary) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Peary s 46 Contravention).
AC. On 10 December 2018, the thirty-fourth respondent (Pledger) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Pledger s 46 Contravention).
AD. On 10 December 2018, the thirty-fifth respondent (Pollard-Sharp) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Pollard-Sharp s 46 Contravention).
AE. On 10 December 2018, the thirty-sixth respondent (Pringle) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Pringle s 46 Contravention).
AF. On 10 December 2018, the thirty-seventh respondent (Rangitaawa) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Rangitaawa s 46 Contravention).
AG. On 10 December 2018, the thirty-eighth respondent (Rogers) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Rogers s 46 Contravention).
AH. On 10 December 2018, the thirty-ninth respondent (Schmidt) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Schmidt s 46 Contravention).
AI. On 10 December 2018, the fortieth respondent (Scott) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Scott s 46 Contravention).
AJ. On 10 December 2018, the forty-first respondent (Seymour) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Seymour s 46 Contravention).
AK. On 10 December 2018, the forty-second respondent (Shrestha) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Shrestha s 46 Contravention).
AL. On 10 December 2018, the forty-third respondent (Tait) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Tait s 46 Contravention).
AM. On 10 December 2018, the forty-fourth respondent (Uremovic) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Uremovic s 46 Contravention).
AN. On 10 December 2018, the forty-fifth respondent (Vikingur) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Redcliffe (Vikingur s 46 Contravention).
AO. On 10 December 2018, the forty-sixth respondent (Weeks) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Forrestfield (Weeks s 46 Contravention).
AP. On 10 December 2018, the forty-eighth respondent (Williams) contravened s 46 of the Act by engaging in unlawful industrial action at the Forrestfield to Perth Airport Rail Link Project site at Bayswater (Williams s 46 Contravention).
AQ. Pursuant to s 94 of the Act, the Union contravened s 46 of the Act by reason of:
(a) the Buchan s 46 Contravention;
(b) the Pallot s 46 Contravention; and
(c) the Molina s 46 Contravention.
(Union s 46 Contravention)
THE COURT ORDERS THAT:
1. Buchan pay a pecuniary penalty of $20,000 in respect of the Buchan s 46 Contravention.
2. Pallot pay a pecuniary penalty of $15,000 in respect of the Pallot s 46 Contravention.
3. Molina pay a pecuniary penalty of $20,000 in respect of the Molina s 46 Contravention.
4. Touhey pay a pecuniary penalty of $4,000 in respect of the Touhey s 46 Contravention.
5. Ali pay a pecuniary penalty of $4,000 in respect of the Ali s 46 Contravention.
6. Barron pay a pecuniary penalty of $4,000 in respect of the Barron s 46 Contravention.
7. Colclough pay a pecuniary penalty of $4,000 in respect of the Colclough s 46 Contravention.
8. Cole pay a pecuniary penalty of $4,000 in respect of the Cole s 46 Contravention.
9. Davies pay a pecuniary penalty of $4,000 in respect of the Davies s 46 Contravention.
10. Dickerson pay a pecuniary penalty of $4,000 in respect of the Dickerson s 46 Contravention.
11. Doyle pay a pecuniary penalty of $4,000 in respect of the Doyle s 46 Contravention.
12. Evans pay a pecuniary penalty of $4,000 in respect of the Evans s 46 Contravention.
13. Feehan pay a pecuniary penalty of $4,000 in respect of the Feehan s 46 Contravention.
14. Fitzgibbon pay a pecuniary penalty of $4,000 in respect of the Fitzgibbon s 46 Contravention.
15. Gill pay a pecuniary penalty of $4,000 in respect of the Gill s 46 Contravention.
16. Hale pay a pecuniary penalty of $4,000 in respect of the Hale s 46 Contravention.
17. Honeyfield pay a pecuniary penalty of $4,000 in respect of the Honeyfield s 46 Contravention.
18. Jones pay a pecuniary penalty of $4,000 in respect of the Jones s 46 Contravention.
19. Kelang pay a pecuniary penalty of $4,000 in respect of the Kelang s 46 Contravention.
20. Kilgour pay a pecuniary penalty of $4,000 in respect of the Kilgour s 46 Contravention.
21. Kohli pay a pecuniary penalty of $4,000 in respect of the Kohli s 46 Contravention.
22. Lilly pay a pecuniary penalty of $4,000 in respect of the Lilly s 46 Contravention.
23. Martinez pay a pecuniary penalty of $4,000 in respect of the Martinez s 46 Contravention.
24. McGroarty pay a pecuniary penalty of $4,000 in respect of the McGroarty s 46 Contravention.
25. Mentesana pay a pecuniary penalty of $4,000 in respect of the Mentesana s 46 Contravention.
26. Moyes pay a pecuniary penalty of $4,000 in respect of the Moyes s 46 Contravention.
27. Muller pay a pecuniary penalty of $4,000 in respect of the Muller s 46 Contravention.
28. Peary pay a pecuniary penalty of $4,000 in respect of the Peary s 46 Contravention.
29. Pledger pay a pecuniary penalty of $4,000 in respect of the Pledger s 46 Contravention.
30. Pollard-Sharp pay a pecuniary penalty of $4,000 in respect of the Pollard-Sharp s 46 Contravention.
31. Pringle pay a pecuniary penalty of $4,000 in respect of the Pringle s 46 Contravention.
32. Rangitaawa pay a pecuniary penalty of $4,000 in respect of the Rangitaawa s 46 Contravention.
33. Rogers pay a pecuniary penalty of $4,000 in respect of the Rogers s 46 Contravention.
34. Schmidt pay a pecuniary penalty of $4,000 in respect of the Schmidt s 46 Contravention.
35. Scott pay a pecuniary penalty of $4,000 in respect of the Scott s 46 Contravention.
36. Seymour pay a pecuniary penalty of $4,000 in respect of the Seymour s 46 Contravention.
37. Shrestha pay a pecuniary penalty of $4,000 in respect of the Shrestha s 46 Contravention.
38. Tait pay a pecuniary penalty of $4,000 in respect of the Tait s 46 Contravention.
39. Uremovic pay a pecuniary penalty of $4,000 in respect of the Uremovic s 46 Contravention.
40. Vikingur pay a pecuniary penalty of $4,000 in respect of the Vikingur s 46 Contravention.
41. Weeks pay a pecuniary penalty of $4,000 in respect of the Weeks s 46 Contravention.
42. Williams pay a pecuniary penalty of $4,000 in respect of the Williams s 46 Contravention.
43. The Union pay a penalty of $125,000 in respect of the Union s 46 Contravention.
44. The pecuniary penalties in orders 1, 2, 3 and 43 are to be paid to the Commonwealth of Australia within 28 days.
45. The pecuniary penalty in orders 4 to 42 are to be paid to the Commonwealth of Australia within 60 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLVIN J:
1 In December 2018, workers on three sites forming part of a major construction project in Perth, Western Australia walked off those sites and did not return to work for the rest of the day. They were encouraged to continue their strike on that day by officials of the Construction, Forestry, Maritime, Mining and Energy Union (Union). The Union has a long history of unlawful industrial action that is well known in this Court. In the present instance, the Union, relevant officials and workers admit that their actions involved unlawful industrial action contrary to s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (Act).
2 The Australian Building and Construction Commissioner (ABCC) seeks declarations and pecuniary penalties. It is accepted by all respondents that declarations of contravention should be made and that pecuniary penalties are appropriate. One of the main issues between the parties concerns the application of the recognised requirement that the pecuniary penalties be proportionate. In particular, the degree to which the antecedents of the Union (and the officials involved) should bear upon the assessment of quantum and whether they might justify a penalty at or close to the maximum even if a consideration of all of the circumstances would not cause a Court to conclude that the contravention is so grave as to warrant the maximum prescribed penalty.
3 There is also as issue as to whether orders should be made to ensure that the penalties imposed upon the officials will be borne by them personally.
Proportionality
4 It is well established that the sentence to be imposed for a criminal conviction should not be increased beyond what is proportionate to the crime in the sense that the sentence must fit the nature of the criminality. Further, where there is a maximum then it is to be reserved for cases which are so grave that they are a category where the maximum should be imposed, sometimes termed 'the worst category', but see The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 at [19]-[20]. The maximum is reserved for cases where the criminality, adjudged by considering both the nature of the crime and the circumstances of the criminal, brings the case within the category of cases where the maximum penalty is justified. Other cases are to be placed upon a spectrum of seriousness and a sentence by reference to the yardstick of the maximum is to be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31]. In order to place the offending on the spectrum, judgments must be formed both as to the gravity of the offending and the moral culpability of the offender for the criminal behaviour.
5 The criminal law aligns criminal liability with moral culpability. Assessing moral culpability for criminal conduct in the context of sentencing requires the consideration of antecedents and other matters that bear upon the retributive aspect of assessing an appropriate criminal sentence. The sentence must be a proportionate punishment for the seriousness of the crime to be evaluated not just by reference to its consequences or the quality of the act or the prospect of its repetition, but by a view as to the extent of the moral culpability for the crime (which will often be greater where there has been relevant past offending). However, the determination of an appropriate sentence should not be approached in a manner that will result in further punishment for past offending.
6 Although the process for determining a civil penalty has a number of aspects in common with determining an appropriate sentence, it is not the same in every respect. The extent to which there is a difference in approach as between the assessment of the duration of a custodial criminal sentence and the quantum of a civil monetary penalty was carefully and closely considered in the recent decision in Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177, a five member appellate court comprising Allsop CJ, Besanko, White, Wigney and Bromwich JJ. The decision in Pattinson was delivered after the hearing in this matter, but the parties were afforded an opportunity to put on further submissions as to its relevance to the present case.
7 As was explained in Pattinson, whereas both in determining an appropriate criminal sentence and in fixing the quantum of an appropriate civil penalty the Court undertakes a contextual consideration of matters that are relevant to the assessment task in order to arrive at a single result by a process of instinctive synthesis and, in both instances, the result must be 'proportionate', the respect in which a civil penalty must be proportionate is not the same as the respect in which a sentence for a crime must be proportionate. Whether a civil penalty is proportionate is not to be determined by any view as to the seriousness of the contravention informed by a view as to the moral culpability of the contravenor taking account of antecedents. Rather in order to be appropriate to the circumstances of the particular case, a civil penalty must fit the purpose of promoting future compliance with the legislation in cases of the kind under consideration both by the contravenor and others.
8 By authorising the imposition of a civil penalty, the legislature puts a price on contravention in order to deter the contravenor, or others tempted to contravene, from engaging in similar behaviour. The specified maximum penalty establishes Parliament's view as to the most that will be required in order to achieve that purpose in any given case allowing for the divergence in circumstances that may pertain. By reference to that yardstick, the quantum of a penalty must be proportionate to the statutory purpose of promoting compliance by imposing a penalty up to the maximum. In that particular respect, the task to be undertaken in fixing a civil penalty is not analogous to the task in determining an appropriate sentence in a criminal case.
9 Nevertheless, in both instances, the maximum is to be reserved for cases adjudged to be of the requisite degree of seriousness based upon an assessment of the spectrum of contraventions. In both instances, the maximum must be reserved for those instances where a consideration of all relevant factors justifies the greatest penalty. In both instances, the objective circumstances of the unlawful conduct must be evaluated such that, all other things being equal, higher penalties are to be imposed for conduct that, viewed objectively, is a more serious breach of the law. However, whereas a view of moral culpability has a significant part to play in fixing a criminal sentence to the extent of its retributive aspect (an aspect that may import consideration of antecedents) it has no part to play in fixing an appropriate civil penalty. Rather, it is the purpose of promoting compliance that assumes significance. The focus on deterrence will mean that the overall penalty may be more (or less) than the penalty that might otherwise be imposed if there was no particular material indicating a concern as to future compliance (or a degree of assurance that repetition was unlikely). However, the overall quantum of the penalty must still reflect an assessment of what is required into the future to deter conduct of the kind in the instant case, not an imposition of a further penalty for past contravention or a moral judgment that likely future disregard for compliance itself justifies the maximum civil penalty in the instant case.
10 For present purposes, the key conclusion in Pattinson is that giving effect to the purpose of deterrence must not disconnect or decouple the assessment process from a need to recognise that the statutory maximum applies to a range of objective seriousness as to the facts and circumstances that may comprise a contravention (see below). Therefore, the penalty in a particular case that is imposed by reason of substantial concerns as to the need for specific deterrence must not depart to such an extent from the penalty that might otherwise be imposed if such concerns were not present that it might be viewed as additional punishment for past contraventions or the embodiment of a moral judgment as to the level of punishment required in order to effect appropriate retribution. It must not become 'untethered' from the objective circumstances of the instant contravention.
11 In addition, it may be noted that when it comes to putting a price on the contravention, the assessment of a civil penalty under laws regulating behaviour in labour markets gives rise to particular considerations. In many instances unions and their officials will not stand to benefit directly from behaviour that contravenes laws that regulate industrial action. Promotion of compliance by those parties may require particular focus upon propensity and past behaviour or the motivations behind the contravening conduct or the financial resources of the union in order to ensure that penalties are set at a level that will fit the purpose of promoting future compliance with the legislation. Indeed, past contraventions may evidence such a degree or strength of unwillingness in the contravenor to disobey the law that such unwillingness will be highly relevant to deterrence: Pattinson at [115] (Allsop CJ, White and Wigney JJ). However, as has been observed, the reason for considering past behaviour when fixing a civil penalty is not to add to the past burden and penalise again the past behaviour, nor is it to reflect some form of moral outrage concerning likely repetition of contravening behaviour. Rather, it must still adhere to the requirement, inherent in the specification of a maximum penalty, that penalties fall on a spectrum where the maximum is reserved for those instances where all aspects of the circumstances including the serious of the nature of the objective circumstances comprising the offending mean that it is at the extreme end of the spectrum where the maximum penalty should be applied.
Outcome
12 For the following reasons, in the circumstances of the present case, imposing a penalty that appropriately fits the purpose of compliance requires a penalty to be imposed upon the Union that is much higher than would have been the case if there was no history of past contraventions. This is a case where the Union's past contraventions indicate such a degree of unwillingness to comply with the requirements of industrial laws such as those in the Act that it is a matter that is highly relevant to deterrence. However, this is not a case where a penalty at or near the statutory maximum is justified because a penalty of that order would not be commensurate with the objective circumstances of the contravening conduct in this particular instance. The same degree of involvement in past contraventions has not been demonstrated in the case of the officials and the level of penalty for them should be influenced principally by the seriousness of the contravention. The agreed penalties for the Workers are appropriate. Therefore, having regard to the relevant statutory maximum in each case, the penalty for the Union will be $125,000, the penalty for Mr Buchan and Mr Molina will be $20,000, the penalty for Mr Pallot will be $15,000 and the penalty for each of the workers will be $4,000.
13 It is not appropriate for orders to be made requiring the Officials to pay personally the penalties to be imposed upon them.
The issues for determination
14 The Act prohibits unlawful industrial action: s 46. Industrial action is unlawful if it is not protected industrial action. The Act adopts the definition of protected industrial action to be found in the Fair Work Act 2009 (Cth), being workplace legislation of broad application. In respects that are not presently relevant, the Act excludes from that definition certain types of action engaged in in concert.
15 In December 2018, each of the respondents engaged in conduct which is admitted by them to have been unlawful industrial action. It concerned a walk-off from three of the construction sites for the Forrestfield to Perth Airport Rail Link Project (Project). The respondents comprise the Union, three senior officials of the WA Branch of the Union, being Mr Michael Buchan, Mr Graham Pallot and Mr Walter Molina (together Officials), and a number of individual workers who participated in the walk-off (Workers).
16 In 2019, proceedings were brought by the ABCC in this Court concerning the walk-off.
17 The parties are now agreed that it is appropriate for the court to make declarations of contravention of the Act by the respondents and to make orders imposing pecuniary penalties. It is for the Court to determine whether it is indeed appropriate to make those orders.
18 As has been indicated, there are two matters on which the parties are not agreed. First, the quantum of penalties that are appropriate to impose upon the Union and the Officials. As to penalty, the parties disagree as to whether the admitted contraventions should be characterised as serious. They also disagree as to the manner in which principles of proportionality bear upon the assessment of appropriate penalties and whether the admissions by the respondents support a discount on the penalty that might otherwise have been imposed after a contested final hearing. Second, whether personal payment orders should be made in respect of each of the Officials with the consequence that they will be obliged to satisfy those orders out of their own funds.
Summary of admitted facts
19 The Workers were employees of Salini Australia Pty Ltd (Salini) and members of the Union. Salini was in the business of engaging in building work. At all material times there was an enterprise agreement in place that covered Salini and the Workers (EA). Salini was obliged to provide the Workers to a joint venture that was contracted to design and construct tunnels, stations and associated works for the Project.
20 On 6 December 2018, Mr Molina and others from the Union exercised statutory rights to enter the Project site and one or more of them discussed the payment of redundancy pay by Salini to its employees at the end of the Project. After that discussion, an employee of Salini asked the senior site supervisor for Salini whether the employees would get redundancy pay. He was told that the employees did not get redundancy pay. Later that day, Mr Pallot sent an email to Salini making an inquiry about payment of redundancy pay.
21 On the evening of 7 December 2018 (a Friday), Mr Molina telephoned Mr Trevor Dobson, the human resources manager for Salini, and said that he had some concerns about the application of the redundancy clause in the EA . He said that it appeared that there are different responses for different sites (one in Redcliffe and one in Forrestfield). Mr Dobson said the matter would be discussed and he would get back to Mr Molina. Mr Molina then said that there was some talk about strike action and he wanted to change the right of entry visit from Bayswater to Redcliffe so he could 'speak to the guys at Redcliffe at their morning break'. Mr Dobson said that would be fine.
22 On 10 December 2018 (Monday) at around 5.30 am, Mr Molina attended the Forrestfield location of the Project site accompanied by another person and set up a table in the parking area. It was identified with Union logos. A senior supervisor for the site, Mr Brendan Lucas, approached Mr Molina and asked what he was up to. Mr Molina responded: 'I am having a chat to the guys this morning as they walk up. We are not hassling anyone as they walk up'.
23 During the pre-start meeting at the site at 6.30 am that morning, an employee asked whether they would get redundancy pay. He was told: 'We do not have an answer on redundancy pay'.
24 During morning break, a section manager for Salini read out a document (Statement) to the employees which said, amongst other things, that the employees were covered by the EA and that the redundancy clause in the EA did not apply to those employed on a specified project basis and that notwithstanding Salini wished to recognise employees with long service to the Project and was considering the issues raised and that industrial action taken in relation to redundancy pay would be unprotected. A complaint was raised in response and the response was given: 'Just continue to work guys. As the letter says, the company is considering the matter'.
25 At around noon, the senior supervisor received text messages from a number of Workers each saying that the employee was unwell and was leaving work. Twenty three of the Workers located at the Forrestfield site ceased work and did not return for the rest of the day. As a result, the planned tasks for the day were not completed, the remaining employees were sent home and half a day's productivity on the site was lost.
26 Also on 10 December 2018 (Monday), at the pre-start meeting at the Bayswater site a question was asked as to whether the employees were getting redundancy. They were given the following response by the site structures supervisor, Mr Johnson: 'It's hard to decipher but I don't believe so'. At various times during the morning employees approached Mr Johnson and said they might attend a meeting at midday outside the Project head office area. In response Mr Johnson said they should not leave the site as it was clear they could be in breach of company policy.
27 At around noon, seven of the Workers located at the Bayswater site ceased working and did not return for the rest of the day. As a result, the planned tasks for the day were not completed and half a day's productivity on the site was lost.
28 Also on 10 December 2018 (Monday) at a meeting with employees of Salini at the Redcliffe site for the Project, Mr Mario Markovic, the section manager, read out the Statement and then said 'Just give the company a bit of time'. An employee asked for five minutes to talk about the issue. He was told that the employees could take 10 minutes but then they were to return to work.
29 At around noon, ten of the Workers located at the Redcliffe part of the Project ceased working and did not return for the rest of the day. As a result, the planned tasks for the day were not completed, scaffold workers had to be sent home and half a day's productivity on the site was lost.
30 The conduct of employees on 10 December 2018 at each of the Forrestfield, Bayswater and Redcliffe sites for the Project together constituted a half day of strike action (Half Day Strike).
31 From about 12.30 pm on 10 December 2018, a group of people that included the Officials and the Workers involved in the Half Day Strike attended the project head office area for the Project. They conducted a meeting in the carpark with attendees that included the Workers (Carpark Meeting). The meeting in the carpark was organised by the Officials. The Officials addressed the meeting and encouraged the Workers engaged in the Half Day Strike to continue their action.
32 At around 1.00 pm the same day, Mr Molina telephoned Mr Dobson and said that he could either address the meeting in the carpark or meet with officials of the Union. Mr Dobson said that he would meet with officials of the Union in the head office. Mr Molina said that the attendees would be the Officials and a representative of the employees, being Mr Touhey. The meeting was held with those persons in attendance. During the meeting with Mr Dobson, the following conversation occurred:
Dobson: 'What's going on?'
Pallot: 'the workers have issues with the application of redundancy pay'
Dobson: 'When are people going back to work? I think it's in everybody's interests to go back to work because there are potentially serious ramifications'
Pallot: 'I don't think we are in a position to get people back today - but they'll be back tomorrow morning. We are not asking you to change your ECA position on redundancy, we want you to review how you apply that position. There is no issue with the scale or the clause - just the time they do or don't get a redundancy. We think the redundancy pay should kick in at the end of the project for all employees. We want to have another meeting to resolve this matter'.
Dobson: 'I understand the guys are upset about how the redundancy is supplied. The company already has advised the union and civil staff that the issue would be considered by the company. I don't have a concluded position to advise you of at the moment but I will once considerations have been completed. I'd like to see it dealt with one way of [sic] the other as quickly as possible but I can't give a definitive timeframe'.
Pallot: 'We'll go and tell them what you said'.
Touhey: 'The guys are frustrated - they've been there quite awhile, they want to be paid a redundancy and they are a bit angry.
Admitted contraventions
33 The Workers admit that by participating in the Half Day Strike they engaged in industrial action that was not protected industrial action which affected Salini which is a constitutionally covered entity within the meaning of the Act and they thereby each engaged in one count of unlawful industrial action contrary to s 46 of the Act.
34 The Officials admit that they organised and were involved in the unlawful industrial action by reason that they encouraged the continuation of the Half Day Strike by what they said at the Carpark Meeting and each is liable for one contravention of s 46 of the Act.
35 The Union admits that by reason of s 94 of the Act the conduct of each of the three Officials was conduct of the Union and that the Union is liable for at least one contravention of s 46 of the Act and the ABCC seeks only to establish one contravention of the Act by the Union.
Declaratory relief
36 The ABCC seeks declarations in respect of the admitted contraventions. The respondents do not oppose the making of the declarations. The role of the Court is not merely to rubber stamp the making of declarations where they are agreed. The principles to be applied in determining whether to grant declaratory relief in such circumstances were summarised in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [90]-[93]. Having regard to those principles, I am satisfied that the declarations should be made. The proposed declaratory orders reflect contraventions that have been demonstrated by the facts as agreed. They identify the nature of the contravening conduct. They will serve to record the Court's disapproval of the conduct, inform others of the nature of the contravening conduct and assist in deterring others from engaging in similar conduct. They will also identify the conduct that is the subject of the penalties that are to be imposed.
Pecuniary penalties
37 It is not suggested that this is a case where pecuniary penalties are not appropriate. I am satisfied that the admitted facts demonstrate that pecuniary penalties are appropriate. Therefore, the only issue concerns the quantum of appropriate penalties.
38 In the case of the Workers, the parties are agreed that an appropriate penalty would be $4,000 for each employee. I am satisfied that the agreed figure falls within the range of possible appropriate penalties for the conduct. Having regard to the decision in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [57]-[58] (Agreed Penalties Case (HC)), I am satisfied that the Court should give effect to the submission of the parties and will fix a penalty in the agreed amount.
39 In the case of the Union and the Officials, the parties are not agreed as to the appropriate penalty. This is principally due to a difference between them on issues concerned with (a) proportionality and past contraventions; and (b) cooperation and contrition.
Relevant statutory provisions
40 The express object of the Act is to provide an improved workplace relations framework for building work in Australia: s 3(1) of the Act. The legislation seeks to ensure that building work is carried out 'fairly, efficiently and productively' without distinction between interests of industry participants so as to benefit the Australian economy as a whole. The means by which the Act aims to achieve that object include 'promoting respect for the rule of law' and 'ensuring that building industry participants are accountable for their unlawful conduct': s 3(2). The inclusion by Parliament of express statements of this kind indicate that part of the mischief being addressed by the Act as a whole is a lack of respect for the rule of law and a lack of accountability for unlawful conduct within the building industry to the detriment of the Australian economy.
41 The Act provides for the imposition of pecuniary penalties where there has been a contravention. The level of penalty is graded. Where, as in this case, the penalty attracts a Grade A penalty, the maximum at the relevant time was $210,000 for a respondent that is a body corporate and otherwise is $42,000.
42 The nature of provisions in the Act, such as s 46, is that they may be contravened by conduct which may fall within a relatively wide spectrum of seriousness measured by reference to the character and quality of the conduct. The nature, quality and extent of conduct that may amount to unlawful industrial action and its consequences may be quite varied.
43 As to the considerations to which there must be regard in determining an appropriate penalty, s 81(6) of the Act expressly provides:
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.
44 Other penalty provisions, such as those to be found in the provisions of the Fair Work Act under consideration in Pattinson are expressed in general terms. The relevant provision in the Fair Work Act states that the Court 'may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate': s 546(1). It then specifies a maximum.
45 As was made plain by the High Court in the Agreed Penalties Case (HC) (approving French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152): 'whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in … CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance': at [55] (footnotes omitted). The Agreed Penalties Case (HC) was concerned with a contravention of the former Building and Construction Industry Improvement Act 2005 (Cth) (which contained equivalent language to s 81(6) of the Act).
46 The overall structure of s 81(6) in requiring the Court to take into account all relevant matters and then specifying expressly certain matters as being included in that general requirement is familiar. It is the form adopted in the Australian Consumer Law (which forms Schedule 2 to the Competition and Consumer Act 2010 (Cth)). However, the express requirement in s 81(6)(d) of the Act is not to be found in the Australian Consumer Law. The additional language appears to reflect the concerns stated in the express legislative object.
47 Nevertheless, it is important to observe that s 81(6)(d) is not the only consideration to be taken into account. Also, just as is the case under the Australian Consumer Law and in the more general provision in the Fair Work Act the task is to determine an appropriate penalty that is guided by all relevant matters. It is a task that is to be undertaken within the context of an application to the Court that concerns a particular contravention. None of the provisions confer a general jurisdiction on the Court to impose a penalty based solely on a history of past contraventions directed to encouraging future compliance. Rather, a penalty is only to be imposed in the context of an allegation of a specific contravention. Therefore, its quantum must be a response that will promote the public interest in compliance in cases of that kind. It must deal with the type of case at hand. That is fundamental to the nature of the task entrusted to the Court where a civil penalty is to be assessed for a contravention. The task is one of determining an appropriate remedy in the circumstances of the contravening conduct.
48 In order to give effect to a statutory provision of that kind, the penalty must fit the purpose of promoting compliance with the legislation in cases where the nature of the contravening conduct is akin to the case at hand. In order to undertake that task, the relevant considerations are confined to those that pertain to the instant contravention. However, unless a particular consideration is identified by the legislation as requiring particular or great weight or significance in the task of assessment, all must be synthesised in assessing the penalty that fits the purpose of ensuring compliance in cases where the contravening conduct is of the same kind.
49 As has been observed, it is well established that there must be due regard to the maximum penalty in fixing a penalty. It provides a yardstick which invites comparison with the case where the maximum is justified. However, that is not to say that the penalty for a contravention where the objective circumstances that amount to the contravening conduct might be described as in the mid-range for seriousness will attract a penalty within the middle of the range between no penalty and the maximum. There will be cases where other relevant considerations mean that a penalty that is greater or less than the range of penalties that might be applied if viewed solely through the prism of seriousness is the appropriate penalty in the particular case. As was said in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 at [156]:
Care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Put another way, a contravention that is objectively in the mid-range of objective seriousness may not, for that reason alone, transpose into a penalty range somewhere in the middle between zero and the maximum penalty. Similarly, just because a contravention is towards either end of the spectrum of contraventions of its kind does not mean that the penalty must be towards the bottom or top of the range respectively. However, ordinarily there must be some reasonable relationship between the theoretical maximum and the final penalty imposed.
50 In view of what has been said in Pattinson, may be taken perhaps with separately identifying the nature of the contravening conduct as being in the mid-range when the task requires a synthesis of all factors. However, I take the point to be simply that penalties must reflect, amongst other things, the differences between the types of conduct that may amount to a contravention of the relevant provision. There is a spectrum which requires the evaluation of a matrix of relevant considerations one of which is the nature of the objective circumstances comprising the contravention. It is the evaluation of where the case falls within that spectrum that indicates where the penalty should lie given that Parliament has specified a maximum penalty (not a fixed penalty). It is not a gradation by reference only to the history of past contravening behaviour. Nor is it a gradation solely by reference to an assessment of the risk of future contravention such that both a minor or technical contravention and contravening conduct of the most serious character could attract a similar penalty if the risk of repetition in each case was assessed as being extremely likely. Parliament has set the yardstick. It is a yardstick where the quantum of the overall penalty must reflect all circumstances including the nature and quality of the objective circumstances comprising the contravention and the extent to which past contravention indicates a need for a higher penalty than might otherwise be the case due to the interests of specific deterrence.
51 The point was articulated in the following terms by the plurality in Pattinson at [195]-[201]:
The error of the primary judge here, being the error of the majority in Broadway on Ann [Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 126; (2018) 265 FCR 208], was that in the name of utilising a notion of recidivism of the union it was seen as in accordance with principle to impose a penalty at the highest level because of the number of prior contraventions, in what was said to be the demonstrated intention of promoting a no-ticket no-start policy, but without any real evaluation of, or weight being given to, the objective characteristics of what occurred as part of the assessment of what was the subject contravention of the penalty to be imposed. Thus, the penalty for the instant contravention became subsumed by a proposition that the time had come, once the perceived threshold level of prior contravening was reached, that henceforth all contraventions would be treated as of the worst category or warranting the maximum penalty, irrespective of the nature and the character of the human conduct that constituted the contravention in question. This can be seen in the approach of the primary judge at [71], [72], [83] and [84] set out above. The past has been used beyond the point of characterising the nature of the contravening (which is the subject of the imposition of the penalty) and has become the reason for the maximum penalty irrespective of the nature and seriousness of the instant contravening. To ask the rhetorical question in the last sentence of [72] of the primary judge's reasons as a supporting proposition is to raise the object of the imposition of the penalty to a justification for ignoring the nature of the contravening, and so to impose the penalty because of, and framed by, only the past. This is not to use, but to jettison, a notion of proportionality by setting to one side the nature of the conduct that comprised the contravention. The penalty becomes imposed not for the instant contravention but, to some degree, for the past, again. This approach elevated past offending to be the defining consideration of the character or gravity of the contravening, irrespective of the actual reality of what constituted the contravention. It was not an assessment of the gravity of the circumstances, including (but not limited to or defined by) what could be drawn legitimately and contextually as to the instant contravention from past contraventions; rather, it was to draw from the past a conclusion that, regardless of how objectively serious or not the conduct in question was otherwise, the maximum penalty should henceforth be imposed.
In the approach we have taken, the notice of contention does not strictly arise in that we do not accept that the assessment of the gravity of the contravention is undertaken divorced entirely from what can be legitimately drawn about the instant contravention from prior contraventions. Nevertheless the notice of contention was important to frame and direct the argument on proportionality and upon the statutory task involved in applying s 546. The notice of contention was in the following form:
1. The criminal law sentencing principle of 'proportionality' is not a relevant consideration for the fixing of a pecuniary penalty for a contravention of a civil remedy provision of the Fair Work Act 2009 (Cth) (FW Act).
2. In the alternative to Ground 1, it is not mandatory to apply the criminal law sentencing principle of 'proportionality' when undertaking the function of fixing a pecuniary penalty for a contravention of a civil remedy provision of the FW Act but, in the Court's discretion, a court may have regard to that principle if it will assist the Court in the discharge of its function.
3. In the alternative to Ground 1 and further to Ground 2, if the criminal law sentencing principle of 'proportionality' is a mandatory consideration or is otherwise a relevant consideration, nevertheless, such principle does not act as a fetter or a ceiling so as to restrict or constrain the level of penalties that a court may impose so as to meet the predominant, if not the only, object of fixing pecuniary penalties for contraventions of civil remedy provisions of the FW Act, namely, deterrence (both general and specific).
For the reasons that we have already set out, the notion of proportionality inheres in the task of imposition of an appropriate penalty in aid of the object of deterrence. It is not a free-standing principle to be seen as based on retribution, as the principle of proportionality in sentencing for crime can be (at least historically). Rather, the relevance of the notion of proportionality inheres in the statutory task of the imposition of a reasonably appropriate penalty for the contravention before the court to deter such or like contraventions, and a rejection of the double imposition of penalty consequences.
In a clear, frank and open submission, senior counsel for the Commissioner recognised that, to support the notice of contention, and, really, to support the primary judge's approach (as discussed above), he must support the contention that deterrence, as the sole object of the imposition of the penalty, and the terms of s 546, together, entitled the court, because of past contraventions, to impose a penalty more than once for the same contravention or to a level that bore no real relationship to the facts and circumstances of the instant contravention: That once the past contraventions reached a certain point, it could be appropriate to deter any contravention, whatever its seriousness otherwise, by the maximum penalty, irrespective of the acts and circumstances that otherwise made up the contravention.
That was, in effect, the approach of the primary judge, which needed the notice of contention and the approach within it, to support it.
Notwithstanding our view that the primary focus of the second appellant's submission that the prior contraventions cannot be relevant to the assessment of the gravity of the contravention is wrong, we would nevertheless, for the above reasons, uphold grounds 1.6 and 1.7 of the appeal and dismiss the notice of contention.
The assessment of what is an appropriate penalty is informed by a reasonable appreciation of all the circumstances that rationally go to an assessment of the gravity and seriousness of the contravention before the court, including (but not limited to) what can be drawn from past conduct as to the instant contravention, and that rationally go to an assessment of what is reasonably necessary, and thus appropriate, to deter such or like contravention in the future by the contravenor or by others. If a grave contravention and a much less serious contravention (thus analysed in the same context) are both said to require the imposition of the maximum penalty, it is difficult to conclude otherwise than that in respect of the latter contravention, the less serious, the penalty is being imposed for both the present contravention and for the past contraventions: a conclusion that was frankly recognised in the argument on the notice of contention. That is also why we consider the approach of the majority in Broadway on Ann to award the maximum penalty for each and every contravention to have been a misapplication of principle.
52 The same issue was addressed by Besanko and Bromwich JJ in the following way at [227]-[230]:
The possible approaches that could be taken to the role of prior contraventions in the task of imposing a civil penalty for a further contravention may be summarised as follows:
(1) Prior history is not relevant to the characterisation of the seriousness or gravity of the instant contravening conduct and only plays a role in deciding where in the range of already appropriate penalties that conduct falls. This is the argument advanced by the appellants, and rejected by the Chief Justice, White and Wigney JJ, and by us.
(2) Prior history can inform the seriousness of the instant contravening conduct to the extent of justifying the imposition of the maximum penalty for conduct that is not of itself of that character, because of the primacy of the role of deterrence. This is the approach urged upon us by the respondent's notice of contention, being in substance what the primary judge in fact did despite his Honour's comments perhaps suggesting the contrary. This unavoidably entails putting the principle of proportionality identified in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 (Veen No 2) to one side. It is an approach that is contrary to any persuasive authority or the proper understanding of the relevant principles of civil penalty imposition derived from criminal sentencing, and is also rejected by the Chief Justice, White and Wigney JJ, and by us.
(3) Prior history may be relevant to an assessment of the seriousness or gravity of the instant contravening conduct, but neither that history, nor the object of deterrence, can result in a penalty that is disproportionate to the contravening conduct itself, having regard to the maximum penalty provided. This is directly supported by the principles stated in Veen No 2, especially at 477-8, as analysed by the Chief Justice, White and Wigney JJ. This is the correct approach.
There was no material difference in the expression of the principles concerning the role of prior contraventions in fixing a civil penalty by the majority as compared to Bromwich J in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Broadway on Ann) [2018] FCAFC 126; 265 FCR 208 and in our joint judgment in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 270 FCR 39, which accord with (3) above. The difference was in the application of those principles. The application of those principles by the majority in Broadway on Ann, and by the primary judge in this case, was plainly wrong for the reasons identified by the Chief Justice, White and Wigney JJ. The approach taken by the primary judge was also contrary to the weight of appellate and single judge authority in this Court. It was contrary to the manner in which the principles in those decisions are to be applied having regard to the principle of proportionality derived by close analogy with the approach to criminal sentencing taken in Veen No 2. His Honour was not at liberty to disregard that lineage of decisions, nor to misapply them. We agree with what the Chief Justice, White and Wigney JJ say about that matter (at [187]-[188]).
The primary judge at [53] correctly identified the similarity between the judgment of Bromwich J in Broadway on Ann and our judgment in Parker in relation to the application of the principles based on Veen No 2. However, in the primary judgment his Honour erroneously attributed to us in Parker (at [53], [63] and [67]), and to Bromwich J in Broadway on Ann (at [46]) a view that prior contravening history is never relevant either to the assessment of the seriousness of a contravention, or to the determination of the range within which a penalty may properly fall. That interpretation would also be to reject, rather than to apply, Veen No 2.
Rather, as we endeavoured to explain in Parker at [341]-[342] and [348], and as Wheelahan J correctly recognised in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 at [96], in properly applying Veen No 2, prior contravening history may be able to be demonstrated to be relevant to an assessment of the seriousness or gravity of the instant contravening conduct. However, neither that history, nor the object of deterrence, can result in a penalty that is disproportionate to contravening conduct itself, having regard to the maximum penalty. That is, prior contraventions may be illuminating in properly characterising what has happened, including the extent of the need for deterrence. This may in turn assist in determining both the appropriate range within which a penalty may be imposed, and in determining where within that range the penalty to be imposed should fall.
53 Fundamentally, what is required is a characterisation of the seriousness or gravity of 'what actually happened to constitute the instant contravention' (at [202]) or the 'instant contravening conduct' (at [230]). The penalty must be proportionate to the task of ensuring future compliance with the law in future instances where there might otherwise be the risk of such conduct happening. What has happened may include the fact that the contravening conduct has been engaged in by a person with a history of similar contraventions or an indifference to the requirements of the Act in general. If a willingness to contravene to be inferred from that history can be shown to form part of the operative circumstances that formed part of the conduct that happened then it should be brought to account in assessing a penalty to promote future compliance by the contravenor and others who might otherwise breach the law in like circumstances.
54 However, as was emphasised by the plurality in Pattinson, the overall penalty must not become untethered from the seriousness or gravity of the contravening conduct. Pattinson makes clear that an approach to penalty that is guided only by a past history of contravening conduct of a kind that manifests a disregard, even a serious disregard, for compliance with the relevant legislation is not authorised because it results in a penalty that is a consequence only of that disregard. The penalty must be proportional to the purpose of deterring conduct of the kind under consideration in the instant case.
55 Significantly, in assessing civil penalties under provisions of the kind expressed in s 81 of the Act, the Court does not engage in a two-step process in which the objective character or quality of the contravening acts themselves are evaluated to establish a range of penalties for seriousness and then the character and quality of the contravenor and other matters bearing upon the risk of future contravention are brought to account to determine where within that range the penalty should be assessed. There is but one process. It brings together all aspects of what happened to bring about the contravention. It results in a penalty for the contravention that fulfils the purpose of ensuring future compliance with the law in respect of instances where conduct of the kind in the present case might otherwise occur.
56 It was submitted for the ABCC that the express reference to antecedents in s 81(6)(d) meant that a different approach was required in assessing a penalty under the Act than would be the case for a contravention of the Fair Work Act. The submission was expressed in the following terms in supplementary written submissions from the ABCC (paras 10-13):
10. Neither the text, context or purpose otherwise invite the introduction of further unexpressed criteria that will fetter the discretion, such as a mandatory application of a notion of proportionality. The discretion in s.86(1) can be rationally and reasonably carried out without subjecting that discretion to a notion of proportionality.
11. Further, the specific matters listed in sub-sections (a), (b) and (c) deal with matters that might be ordinarily considered when applying the common law principle of 'proportionality'. This sounds distinctly against the principle of proportionality also entering and controlling the penalty fixing task independently of taking into account those specified matters.
12 Section 81(6)(d) specifically deals with antecedents . That specification reveals a legislative intention that this is to be a discrete consideration when the Court is fixing a penalty under the BCIIP Act. Having regard to this distinct matter only insofar as it plays a role in applying a proportionality notion or principle in accordance with the approach in Pattinson FCAFC (an approach developed in the context of the differently constructed s.546 of the FW Act) would depart from this legislative intention.
13. Moreover, s 81 establishes no hierarchy of those mandatory considerations. Nothing in the provision suggests consideration of antecedents (s.81(6)(d)) cannot lead to a penalty which, under a penalty regime governed by different principles or approach, might be characterised as not conforming to a notion or principle of proportionality.
(original emphasis, footnote omitted)
57 I do not accept that the language used in s 81(6) manifests an intention to require an approach to assessment of penalty that is different in character to that articulated in Pattinson. That approach derives from what was said in the Agreed Penalties Case (HC), a case concerned with legislation which, like the Act, was concerned with regulating industrial relations in the construction industry and which contained a provision allowing for the imposition of pecuniary penalties in the advancement of equivalent statutory objects. It did not contain a list of factors to be taken into account. However, the list that is to be found in s 81(6) does not indicate any primacy or singularity when it comes to the matters to be taken into account. Importantly it requires the nature and extent of the contravention, the loss or damage suffered, the circumstances of the contravention and antecedents to be taken into account. At most, it requires the synthesis to reflect all those factors, not that one of them (previous findings that the respondent has engaged in similar conduct) to predominate. That was the nature of the conclusion reached in Pattinson.
58 The decision in the Agreed Penalties Case (HC) preceded the enactment of the Act. It formed part of the existing law as to pecuniary penalties that provided the context in which the Act was to be construed: Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 at [42]. It was in that context that the matters in s 81(6) were listed without differentiation as to the manner in which they are to be taken into account.
59 A provision which authorised the Court to impose a higher penalty by reason of past contraventions in a manner that was not tethered to the task of assessing the appropriate penalty to deter future conduct of the kind in the instant case would be a serious and fundamental departure from principles that apply not only as to civil penalties but also as to criminal sentencing. In both contexts, it is fundamental that there must be proportionality between the penalty or sentence and the circumstances of the particular case. The penalty or sentence must fit what happened in the particular instance under consideration. It must not take the form of imposing part or all of the penalty or sentence for the reason that there has been similar antecedent conduct. The past conduct must be relevant to future compliance (in the case of a pecuniary penalty) or to an assessment of the extent of moral culpability for the instant offence (in the case of a criminal sentence). The penalty for past conduct is complete and is not to be revisited. The penalty for the instant conduct must be proportionate to that conduct (which may include the fact that it was undertaken in the context of the antecedents where they bear on the nature of the current task of assessing a civil penalty or sentence). In those circumstances, it is to be expected that a departure from those principles of the kind contended for by the ABCC would have been expressly stated if it was intended that regard for one of the matters listed in s 81(6) could predominate in the fixing of the penalty.
60 Therefore, in my view, the words in s 81(6)(d) serve to ensure that in fixing a penalty that is proportionate to the purpose of promoting future compliance with the legislation in cases of the kind under consideration the Court takes into account the antecedents as being indicative of a disregard for compliance by the contravenor at the time of the instant contravention and into the future. However, the penalty must still be tethered to circumstances of the particular case and must be directed towards promoting compliance with the requirements of the Act concerning conduct of that quality and degree.
61 The contentions advanced for the ABCC would mean that the assessment of the pecuniary penalty would no longer be protective in promoting the public interest in compliance. Instead it would become retributive by imposing a greater penalty by reason of the antecedents which would reflect a view that the contravenor bore a greater degree of moral culpability because of past contraventions. It would see penalties at or near the maximum irrespective in cases where all other relevant considerations did not indicate the maximum. Further, in my view, such a conclusion would be contrary to the view expressed in the Agreed Penalties Case (HC) and, for that reason, is a step that I could not be persuaded to take. It would also be contrary to the reasoning in Pattinson which is also binding because it would impose a penalty that was greater than that which was appropriate to promote the public interest in compliance. In that regard I note that the ABCC formally maintained the submissions that it advanced in Pattinson that were not upheld in that decision.
62 It follows, in my view, the maximum penalty is for cases where, in all the circumstances, including antecedents, the character, quality and circumstances of the contravening conduct and its consequences the contravention is of the most serious kind and the concern that a penalty is needed to ensure future compliance by the contravenor and others is high, that is to say where regard to all considerations leads to the conclusion that the maximum should be imposed. To impose the maximum in other cases not of that kind would be to ignore the yardstick indicated by the maximum which is intended to apply in a graduated manner to a range of objective circumstances that might amount to a contravention (in this case a range of unlawful industrial action). It is a yardstick that encompasses the possibility that a range of considerations will affect whether a penalty at or near the maximum is appropriate. To allow one factor (the extent of past contravention) to lead to a conclusion that the maximum should be imposed in cases where another important factor (seriousness of the conduct or the financial resources of the contravenor did not support a penalty at or near the maximum) would be to ignore the statutory intention that the overall penalty should bring to account all relevant matters.
63 The penalty must be a proportionate response taking account of all considerations that bear upon an assessment of what is required for the penalty to fit the purpose of specific and general deterrence. Whether the maximum is for a case where all the considerations listed in s 81(6) may be characterised as serious need not be determined.
64 In that context, all members of the Court in Pattinson viewed the overall task to be undertaken in fixing a pecuniary penalty under the Fair Work Act as requiring an assessment of the nature and gravity of the contravention which includes the degree and strength of the demonstrated willingness of the contravenor to disobey the law: at [108], [162] (Allsop CJ, White and Wigney JJ), [230] (Bensanko and Bromwich JJ).
65 The fixing of penalties requires a contextual consideration of matters that are relevant to the assessment of penalty that are of particular significance for the case at hand in order to arrive at a single result by a process of instinctive synthesis: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [54] (Keane CJ, Finn and Gilmour JJ). It requires the identification of those factors that are of significance and the reflection of them all in an appropriately calibrated penalty. The required process of assessment is evaluative, not mathematical: Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118. Factors that may be relevant have been listed in the decided cases, but such lists should not be approached as a checklist.
66 Recognising that the overall nature of the task requires a single overall amount to be evaluated, I now turn to consider the matters that were highlighted by the parties as being relevant to the assessment of penalty in this case.
Seriousness of the conduct
67 In assessing the seriousness of the admitted contraventions by the Union and the Officials, the ABCC submitted that the following matters should be brought to account:
(1) the Officials who arranged and encouraged the industrial action by attendance at the meeting comprised two senior officials of the union and an organiser;
(2) there were a considerable number of employees involved;
(3) the ready availability of a dispute resolution mechanism under the EA and statutory rights by which the dispute as to redundancy pay may have been resolved lawfully, none of which was pursued;
(4) there was disruption, delay and inconvenience for the Project with planned tasks not being able to be undertaken;
(5) the strike lasted for half a day and was not just a brief walk-off;
(6) the meeting attended by the Workers after the walk-off was arranged by the Officials during business hours and it may be inferred that attendance would require industrial action by employees required to work on the Project; and
(7) the meeting in the carpark outside the main office was organised and encouraged at a time when the Officials knew it was unlawful and involved attendance by Workers who had walked off three sites that formed part of the Project.
68 I accept those submissions.
69 As to matters raised by the respondents, I note that the admitted facts do not suggest that there was any coercion, intimidation or threats. They demonstrate a genuine industrial issue and there is no suggestion that the walk-off was motivated by base or arbitrary reasons on the part of those involved.
The extent of detriment
70 Although there is agreed to have been a loss of productivity of half a day and a consequence for the scaffolding contractor, there is no identification of the order of magnitude of the financial consequences of the Half Day Strike for any party. On the other hand, the Project is a very large one and it may be inferred in the absence of contrary evidence that the consequences of the walk-off were not trivial or insignificant.
71 For the respondents, reliance was placed upon the reasoning of Perram J in Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382 at [79] that:
In cases where, as here, it is easy to imagine detriment to consumers I would accept that the absence of any evidence of suggested harm should be regarded as a mitigating factor. The reason for this is no more than commonsense: if harm is likely to have been suffered by reason of the contravening conduct but no evidence is led which suggests that it was, the respondent is entitled to be sentenced on the basis that the conduct has not caused harm which, plainly enough, will be a mitigating circumstance.
72 In Singtel Optus at [58], the Court approved the approach in MSY Technology in the case of a contravention of a consumer law saying: 'The absence of loss or damage to consumers is a circumstance which would usually attract a less severe penalty than if substantial harm had been inflicted on consumers … the absence of such evidence, in a case such as this, constitutes a factor in mitigation of penalty'.
73 However, this is not a case where there was an absence of evidence. Nor is it a case where there is uncertainty as to whether there was any consequence at all of the contravening conduct. It was agreed that there was a loss of productivity. It was submitted for the respondents that the loss may have been made up at a later time. However, the fact remains that there was an agreed consequence to the admitted conduct in this case, namely the loss of productivity. If that was able to be recovered that would be due to the efforts of Salini or serendipitous circumstances. The conduct would still have exposed Salini (and the affected scaffolding contractor) to the risk of loss. It is little mitigation to say that even though there was a loss of productivity and therefore a risk that the loss may not be able to be made up due to factors for which the respondents could take no credit, in the result, there may have been no actual loss.
Other aspects of the objective circumstances
74 Another aspect of the conduct relied upon by the respondents as to penalty is that the walk-off was not followed up with further action the next day and it appears to have been brought to an end without the redundancy pay issue being resolved or any demand in relation to redundancy pay being met. This is not a significant factor in my view because it may be inferred from the circumstances as a whole that the purpose of the industrial action was to communicate a dissatisfaction with the position of Salini in not immediately acknowledging the validity of the complaint that was raised about redundancy pay. On the facts, the walk-off was unlawful industrial action in protest against Salini's position and is appropriately viewed as an attempt to influence what it did in relation to redundancy pay.
75 The extent to which the conduct was pre-meditated or was commenced by reason of the actions of the Officials is contentious. What can be said, on the agreed facts, is that Mr Molina was in the carpark at Forrestfield on the morning of the walk-off. Questions were raised about redundancy at each of the three sites on the same morning. A number of Workers at the Forrestfield site reported sick and then attended the meeting in the carpark outside the main office. Workers from across the three sites knew to attend the carpark meeting. Having regard to the seriousness of the allegations I am not prepared to infer that the walk-off was premeditated and occurred because of steps taken by the Officials. It is equally open to infer that the walk-off was the consequence of communications between employees of Salini during the course of the Monday morning and steps taken by them after that to contact the Officials and arrange the meeting in the carpark outside the main office.
76 Taking all these matters into account I would characterise the nature and quality of the objective circumstances comprising the admitted contraventions as being of moderate seriousness. I do not accept the submission of the ABCC that the conduct might be characterised in an unqualified way as objectively serious. I would reserve that description for cases that were more serious than the present case.
77 The significance of the characterisation for present purposes is that it is engagement by the respondents and others in future conduct of the same character or quality that is to be deterred by a penalty which is to be fixed by reference to the yardstick provided by Parliament in the form of the maximum penalty. However, in order to reach the required conclusion by instinctive synthesis there must be regard to other considerations that are of particular relevance in this case because they are considered to bear upon an assessment of the level of penalty that is appropriate to encourage future compliance with the Act by the respondents when it comes to conduct of the kind in the present case. That is because when it comes to specific deterrence it is not only the quality of the conduct in this case that indicates what is required by way of penalty to achieve future compliance by the respondents (considered in the context of the statutory maximum).
Contrition
78 For the ABCC it was submitted that there was no indication that the admissions made by the Union and the Officials were indicative of contrition or recognition of wrongdoing on their part and there was otherwise no hint of remorse, regret or contrition, such as training or steps taken to avoid future conduct of a similar kind. I accept that submission. It was said that an admission may be made simply to spare a party the cost and burden of a trial rather than as a demonstration of cooperation of a kind that indicates a likelihood of compliance in the future. I would put the present case in that category.
79 For the respondent it was submitted that any lack of contrition was not an aggravating circumstance that might increase penalty. Reliance was placed upon three decisions in that regard. First, BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10] which Kiefel J (as the Chief Justice then was) said:
There has been no apology in the face of serious findings against the respondent and its officers. Whilst the lack of an apology is not an aggravating circumstance, such as might increase the penalty, the making of an apology can operate to reduce a penalty, at least where it can be seen to render it unlikely that the conduct will be repeated in the future. The respondent has elected not to take that course.
80 Second, Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040 at [87] where Kenny J applied the reasoning in BHP Steel (AIS). Third, Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [87] (White J).
81 Reliance by the respondents upon those authorities was not questioned by the ABCC.
82 I note that the three decisions predate the focus on the need for the penalty to be proportionate to the purpose of ensuring compliance with the law as stated in the Agreed Penalties Case (HC) As has been observed, this approach and its significance for the assessment of an appropriate civil penalty has been further explained in the recent decision in Pattinson.
83 Viewed in the context of the emphasis that the recent authorities place upon compliance as the purpose to be served in fixing a pecuniary penalty, a lack of contrition may contribute to an assessment by a process of instinctive synthesis that a higher penalty than would be the case if the penalty were assessed solely by reference to the seriousness of the conduct would be appropriate in a particular case. Reasoning in that way would not mean that a lack of contrition or apology of itself should lead to a higher penalty on the basis that the nature of the conduct is somehow seen to be aggravated by that failure. Rather, the failure to manifest contrition or insight into past behaviour might, together with other factors lead a court to conclude that a higher penalty is needed in the particular case in order to serve the purpose of deterring future contravention.
84 Nevertheless, in view of the approach adopted by the parties and in the absence of argument on that aspect, I do not bring the lack of contrition or the failure to provide an apology to account as a reason for fixing a higher penalty than might otherwise have been the case.
Cooperation
85 It is common ground that the case settled after pleadings and during mediation.
86 The ABCC submits that there should only be a discount for cooperation if the nature of the alleged cooperation itself indicates that a lesser penalty is needed to effect deterrence and in this case there is no such indication because there is no hint of remorse, regret or contrition.
87 The respondents submit that cooperation is a factor that weighs heavily in their favour in assessing penalty. They say that they cooperated in the preparation of an extensive statement of agreed facts which has saved considerable legal costs, court time and the resources of the ABCC.
88 Reference was made to reasoning in Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 at [74]-[75] where Stone and Buchanan JJ reasoned from statements of the majority in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 to the following statements:
It is important to note that it is not a sufficient basis for a discount that the plea has saved the cost of a contested hearing - that would discriminate against a person who exercised a right to contest the allegations. A discount may be justified, however, if the plea is properly to be seen as willingness to facilitate the course of justice. Remorse and an acceptance of responsibility also merit consideration where they are shown.
A conventional consideration in assessing a discount in a criminal case for a plea of guilty is the stage in the proceedings at which the plea is entered. Normally, the maximum discount for this factor, sometimes thought to be 25%, is reserved for a plea made at the first reasonable opportunity although, as was indicated in Cameron (at [23]-[24]) there is no obligation to make an early plea to a charge which wrongly particularises the substance to which the charge relates.
89 A discount of this kind is sometimes described as a utilitarian discount from a sentence in a criminal case that would otherwise be appropriate for the objective circumstances of the case.
90 In Pattinson (at [116]) the plurality quoted with approval the following passage from Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [163]-[165]:
About the only thing that could be said in favour of the CFMEU, other than that the conduct was related to genuine concerns about sham contracting, is that it cooperated with the Commissioner in relation to these proceedings by admitting the contraventions and reaching agreement in relation to the facts. Importantly, the admissions and agreed facts were also not withdrawn after the initial agreement in relation to the penalty amounts was withdrawn by the Commissioner. There is no doubt that the CFMEU should receive credit for this cooperation. From a public policy perspective, it is important to encourage such cooperation by reflecting it in the penalties imposed. It also shows willingness on the part of the CFMEU to accept responsibility for its actions and to facilitate the course of justice. The fact that the proceedings were not defended saved the community the expense of a potentially lengthy contested hearing.
It is, however, doubtful in all the circumstances that the CFMEU's cooperation with the regulator could really be said to demonstrate contrition or remorse. In some respects the cooperation reflects nothing more than an acceptance of the inevitable. The CFMEU did not adduce any evidence of contrition or remorse. Indeed, there was not even an expression of contrition or remorse in its submissions. There was no evidence from which it could be inferred that the CFMEU intended to change its ways. There was certainly no suggestion, let alone evidence, to the effect that the CFMEU intended to set up any systems, processes, procedures or education to ensure that its officers did not encourage unlawful industrial action in the future.
The principles in relation to taking admissions and cooperation into account are well-known and do not need to be repeated. It is sufficient to note that the authorities make it clear that it is not necessary for the Court to specify a specific discount or percentage discount in respect of cooperation.
91 Their Honours found that matters of contrition and the utilitarian value of admissions were not the same though they may be related on the facts of a particular case: at [209].
92 In this instance, the facts demonstrate that there were admissions and cooperation so as to confine the issues considerably and thereby avoid the costs of a contested final hearing. Therefore, there is a proper basis for a downward adjustment to the penalty for the utilitarian value of these matters, but it is not an adjustment for which there should be allocated any form of percentage. It is a matter to be synthesised with other considerations.
Willingness of the Union to disobey the law
93 The circumstances of the present case manifest a willingness on the part of the Union to disobey the requirements of the Act. The strike was plainly unlawful. The action was taken without any attempt to negotiate. It was encouraged by very senior officials of the Union. It was taken in circumstances where Salini had asked for time to consider the claim and where there was an agreed mechanism for resolution of disputes as to entitlements under the EA such as a claim to redundancy pay. The issue was raised with Salini on a Friday and the walk-off occurred on the following Monday. There is no suggestion of any immediacy to the issue raised that was of a kind that might provide some semblance of explanation for the conduct. In particular, there was no issue about safety or ongoing physical work conditions or present payments. There was no suggestion that Salini was not engaging with the issue. A formal response was provided to the employees on the Monday.
94 In addition, the ABCC has referred to past findings of contravention of industrial legislation by the Union which demonstrates a sustained history of disobeying the Act by the Union. In its submissions the ABCC identified 160 separate judgments since around 2003 in which the Union had been found to have contravened industrial legislation.
95 There was no evidence of corrective training or any suggestion that steps have been taken by the Union to ensure compliance with its obligations under industrial legislation in the future. I accept the submission for the ABCC that contravening behaviour has been demonstrated to be institutionalised in the Union. In a different case it may be necessary to consider whether past contraventions bore a similarity to the present case that meant they were relevant. However, the sheer scale of disregard for the law enables the present case to be approached on the basis that past penalties have been ineffective in deterring the Union from contravening the obligations imposed by industrial legislation.
96 Nevertheless, as has been noted the penalty must remain tethered to the gradation inherent in the specification of the maximum penalty. I have no hesitation in concluding that this is a case where the degree and strength of the unwillingness of the Union to obey the law makes that consideration of considerable significance and highly relevant to the task of assessing an appropriate penalty.
Willingness of the Officials to disobey the law
97 In the case of Mr Buchan, the ABCC identified four prior contraventions. For Mr Buchan it was said that the relevant conduct occurred in 2013 in the case of two of the contraventions, 2009 for another and 2007 for another. Further, the case in 2007 concerned the suspension of Mr Buchan's right of entry permit rather than the imposition of a monetary penalty. Other than the instant case there was no evidence of contravention between 2013 and the date of submissions in July 2020.
98 In the case of Mr Molina, the ABCC identified four prior contraventions with a similar character as to timing as Mr Buchan. Also in his case the case in 2007 concerned a suspension of Mr Molina's right of entry permit. Also in his case, other than the instant case there was no evidence of contravention between 2013 and the date of submissions in July 2020.
99 In the case of Mr Pallot he had been found to have contravened the Fair Work Act in respect of the organisation of unlawful industrial action engaged in by a cohort of about 400 employees at the Fiona Stanley Hospital site in September 2013. Also in his case, other than the instant case there was no evidence of contravention between 2013 and the date of submissions in July 2020.
100 Mr Buchan and Mr Molina are both experienced Union officials employees in senior leadership roles within the WA Branch of the Union. They hold positions of influence when it comes to future conduct by the Union. Mr Pallot was until recently the Assistant State Secretary of the WA Branch of the Construction & General Division of the Union. However, he has now retired and does not intend to renew his federal permit.
101 These aspects are relevant to specific deterrence but they must be weighed with the effect on general deterrence for other officials of similar seniority of the level of any pecuniary penalty.
Other relevant matters
102 There is no suggestion that the Union lacks the financial means to meet any penalty. The submission for the ABCC that the Union 'is both cash and asset rich' was not traversed by the Union. This is not a case where the depleted or limited financial circumstances of the contravenor mean that the burden of a financial penalty will be felt especially keenly.
103 The submissions advanced for the ABCC placed reliance upon a number of Full Court decisions that were considered in Pattinson. As those arguments have been dealt with in Pattinson I do not consider it necessary to address them separately in these reasons.
Quantum of penalty for the Union
104 The ABCC submits that the appropriate penalty for the Union should be the maximum available or at the upper end of the high range. The submission as to quantum reflects the submissions advanced as to proportionality and overall seriousness of the objective circumstances which I have not accepted.
105 The Union submits that an appropriate penalty would reflect the relatively short duration of the action, the relatively low seriousness, the absence of substantial loss or damage and the level of cooperation. It submits that an appropriate penalty would be in the middle of the mid-range or around 50% of the maximum, indicating, it submits, $105,000. For reasons I have given I would characterise the objective seriousness as greater than relatively low (being moderately serious) and I would not accept that there is no evidence that there was any adverse consequence from the contravening conduct. The conduct was confined to half a day. There has been cooperation, but not contrition. To these matters must be added the evidence of past disregard for compliance which is a significant matter for specific deterrence.
106 Taking all matters into consideration, in the context of the maximum, I would assess an appropriate penalty as being $125,000.
Quantum of penalty for the Officials
107 The ABCC submits that the contraventions by each of Mr Buchan and Mr Molina should attract penalties in the high range. It characterises their conduct as premeditated, deliberate and sustained. The contraventions are submitted to have been serious particularly as they occurred at three sites relating to the Project. It is said that they assumed coordination roles and each has a history of contravening industrial legislation. For reasons I have given I do not accept that it has been shown that the conduct was premeditated. Nor would I describe it as sustained or serious. It was moderately serious.
108 As to Mr Pallot, the ABCC submits that his penalty should be at the upper mid-range on the basis that his retirement diminishes to some extent the need for specific deterrence. It also notes that his two prior contraventions arose from the same proceeding concerning the Fiona Stanley Hospital.
109 For Mr Buchan and Mr Molina, it was submitted that the appropriate penalty should be at the low end of the middle range, being an amount approximately equivalent to 35-40% of the maximum with a figure of $15,000 being mentioned. It is said that a penalty at that level reflects what is submitted to be the relatively short duration and relatively low seriousness of the conduct, the absence of substantial loss or damage and the level of cooperation. As I have said the conduct should be characterised as being of moderate seriousness, on the evidence it did have a consequence (although it is not quantified) and there was cooperation but not contrition.
110 For Mr Pallot it was accepted that the considerations were similar but not identical. It was put that his retirement and the absence of any basis to frame a penalty to give effect to specific deterrence meant that his penalty should be at the upper end of the low range, being an amount that was approximately equivalent to 25-30% of the maximum with a figure of $11,000 mentioned.
111 Taking all matters into consideration I would assess an appropriate penalty for Mr Buchan and Mr Molina as being $20,000 and for Mr Pallot as being $15,000.
112 The ABCC sought an order that the penalties be paid to the Commonwealth within 28 days. It was submitted that the orders for payment by the Workers should allow for 60 days and I propose to allow the additional time.
Personal payment orders
113 The respondents submitted that there was no power to make personal payment orders under the Act. It has been held that s 546(1) of the Fair Work Act has been held to confer an implied power to make such orders: Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157. It confers a power to 'order a person to pay a pecuniary penalty that the court considers appropriate'. In reaching the conclusion that there was an implied power to make a personal payment order, Keane, Nettle and Gordon JJ reasoned as follows at [120]:
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.
114 Section 81(1)(a) of the Act provides that a relevant court may make a 'an order imposing a pecuniary penalty on the defendant'. No submission was advanced as to why that language was not amenable to the same form of reasoning as was applied to the similar (though not identical) language in s 546(1) of the Fair Work Act. I note that a submission as to the basis for a distinction between the two instances was recorded by O'Callaghan J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 at [59]-[60]. Although his Honour did not find it necessary to decide the point, he was inclined to the view that it was likely that the same power was to be implied into the relevant provision in the Act 'whatever fine linguistic distinctions may be drawn between the two provisions': at [61]. I agree. I am satisfied that the power exists to impose such an order in this case.
115 The ABCC sought personal payment orders as against each of the three Officials. In my view orders of that kind are imposed principally for reasons of specific deterrence. I am not satisfied that such an order is justified on that basis in the case of Mr Pallot who has retired and in respect of whom the evidence indicates only one prior contravening circumstance in which Mr Pallot was involved.
116 However, the nature of the contraventions by Mr Buchan and Mr Molina taken with the history of their prior contraventions (which were some time ago) and their ongoing senior roles within the Union, make the issue in relation to personal payment orders more finely balanced. Nevertheless, in all the circumstances I am not satisfied that personal payment orders should be made. In general, they should be reserved for cases where there is a relevantly proximate history of contravention or some other aspect that manifests a need for a personal payment order to deliver the required specific deterrent effect in respect of the individual concerned. Of particular significance is the absence of any evidence from which it might be inferred given the seriousness of the allegations that it was Mr Buchan or Mr Molina that instigated the walk-off as distinct from encouraging its continuation by addressing the meeting in the carpark near the main office of Salini. I note that personal payment orders were not made in circumstances with some similarity to the instant case in The NewCold Picket Case and in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202, see [39] (Anastassiou J).
117 Additional time was sought to pay in the event that personal payment orders were made but it is not necessary to consider the question of time for payment in circumstances where those orders will not be made.
118 There will be declarations and civil penalty orders in the terms I have indicated earlier in these reasons.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. |
Associate:
WAD 200 of 2019 | |
WALTER VINCENZO MOLINA | |
Fifth Respondent: | GERALD TOUHEY |
Sixth Respondent: | PAUL ALI |
Seventh Respondent: | CHAD BARRON |
Eighth Respondent: | BRIAN COLCLOUGH |
Ninth Respondent: | MATTHEW COLE |
Tenth Respondent: | RYAN DAVIES |
Eleventh Respondent: | RODNEY DICKERSON |
Twelfth Respondent: | DAVID DOYLE |
Fourteenth Respondent: | DAVID EVANS |
Fifteenth Respondent: | JULIEN FEEHAN |
Sixteenth Respondent: | NIALL FITZGIBBON |
Seventeenth Respondent: | MATTHEW GILL |
Eighteenth Respondent: | GEOFFREY HALE |
Twentieth Respondent: | SHAYNE HONEYFIELD |
Twenty-Second Respondent: | CHERYLE JONES |
Twenty-Third Respondent: | DAU BETHOU KELANG |
Twenty-Fourth Respondent: | RYAN KILGOUR |
Twenty-Fifth Respondent: | TRISTAN KOHLI |
Twenty-Sixth Respondent: | RYAN LILLY |
Twenty-Seventh Respondent: | RAMON MARTINEZ |
Twenty-Eighth Respondent: | GAVIN MCGROARTY |
Twenty-Ninth Respondent: | MATTHEW MENTESANA |
Thirtieth Respondent: | DARREN MOYES |
Thirty-First Respondent: | KEITH MULLER |
Thirty-Third Respondent: | MATTHEW PEARY |
Thirty-Fourth Respondent: | RICHARD PLEDGER |
Thirty-Fifth Respondent: | BRADLEY POLLARD-SHARP |
Thirty-Sixth Respondent: | BEN PRINGLE |
Thirty-Seventh Respondent: | GARY RANGITAAWA |
Thirty-Eighth Respondent: | JOEL ROGERS |
Thirty-Ninth Respondent: | WARREN SCHMIDT |
Fortieth Respondent: | IAN SCOTT |
Forty-First Respondent: | KEVIN SEYMOUR |
Forty-Second Respondent: | RIKEN SHRESTHA |
Forty-Third Respondent: | PETER TAIT |
Forty-Fourth Respondent: | BRANIMIR UREMOVIC |
Forty-Fifth Respondent: | JAMES VIKINGUR |
Forty-Sixth Respondent: | JORDAN WEEKS |
Forty-Eighth Respondent: | GARY WILLIAMS |
