Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case) [2020] FCA 1742

ORDERS

THE COURT DECLARES THAT:

1.    On 23 May 2019, the Second Respondent contravened section 494 of the Fair Work Act 2009 (Cth) (FW Act) when he entered the construction project at 80 Elizabeth Street, Hobart, Tasmania (Site) and exercised rights under the Work Health and Safety Act 2012 (Tas) (WHS Act) while not being a permit holder under the FW Act.

2.    On 28 May 2019, the Second Respondent contravened section 494 of the FW Act when he entered the Site and exercised rights under the WHS Act while not being a permit holder under the FW Act.

3.    On 28 May 2019, the Third Respondent contravened section 494 of the FW Act by being knowingly involved in the contravention of section 494 of the FW Act by the Second Respondent.

4.    On 28 May 2019, the Third Respondent contravened section 500 of the FW Act when he acted in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act by being knowingly involved in the contravention of section 494 of the FW Act at the Site.

5.    On 28 May 2019, the Third Respondent contravened section 500 of the FW Act when he acted in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act by:

(a)    acting in a loud and intimidating manner toward the Site foreman when asked what safety equipment was unsafe, and saying words to the effect of “don’t get smart with me, arsehole. I’m nearly at the end of my career. I don’t give a fuck about what happens to me, but that bloke over there will be onto you [pointing to the Second Respondent]”;

(b)    responding to a request to identify safety breaches with “you don’t fucking pay me, so I’m not going to tell you”; and

(c)    responding to the Site project manager asking the Third Respondent to leave by telling him to “get fucked”.

6.    The First Respondent contravened:

(a)    section 494 of the FW Act on 23 May 2019 by reason of the conduct of the Second Respondent referred to in declaration 1;

(b)    section 494 of the FW Act on 28 May 2019 by reason of the conduct of the Second Respondent referred to in declaration 2;

(c)    section 494 of the FW Act on 28 May 2019 by reason of the conduct of the Third Respondent referred to in declaration 3;

(d)    section 500 of the FW Act on 28 May 2019 by reason of the conduct of the Third Respondent referred to in declaration 4; and

(e)    section 500 of the FW Act on 28 May 2019 by reason of the conduct of the Third Respondent referred to in declaration 5.

THE COURT ORDERS THAT:

1.    The First Respondent pay the following pecuniary penalties:

(a)    $50,000 in respect of its contravention referred to in declaration 6(a);

(b)    $45,000 in respect of its contravention referred to in declaration 6(b);

(c)    $45,000 in respect of its contraventions referred to in declarations 6(c) and (d); and

(d)    $45,000 in respect of its contravention referred to in declaration 6(e).

2.    The Second Respondent pay the following pecuniary penalties:

(a)    $10,000 in respect of his contravention referred to in declaration 1; and

(b)    $10,000 in respect of his contravention referred to in declaration 2.

3.    The Third Respondent pay the following pecuniary penalties:

(a)    $8,000 in respect of his contraventions referred to in declarations 3 and 4; and

(b)    $8,000 in respect of his contravention referred to in declaration 5.

4.    The Second Respondent pay the penalties required by Order 2 personally in that he not, whether before or after the payment of those penalties:

(a)    seek to have or encourage the First Respondent in any way whatsoever, directly or indirectly, to pay to him or for his financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part; and

(b)    accept or receive from the First Respondent in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part.

5.    The Applicant serve these orders on:

(a)    the First Respondent in accordance with rule 10.04 of the Federal Court Rules 2011 (Cth); and

(b)    the Second and Third Respondents in accordance with rule 10.01 of the Federal Court Rules 2011 (Cth).

6.    The pecuniary penalties referred to in Orders 1 and 3 be paid to the Commonwealth of Australia within 28 days.

7.    The pecuniary penalties referred to in Order 2 be paid by the Second Respondent to the Commonwealth of Australia within 90 days.

8.    There be no order as to costs.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    By an amended originating application and an amended statement of claim, the applicant seeks various declarations of contraventions of the Fair Work Act 2009 (Cth) (the FW Act) by the respondents, and the imposition of penalties.

2    By their amended defences, each of the respondents makes admissions, as follows.

3    The second respondent, Mr Hassett, admits to two contraventions of s 494 of the FW Act, which he committed on 23 and 28 May 2019 by exercising a state or territory OHS right at a construction project located at 80 Elizabeth Street, Hobart, Tasmania (the Project) while not being a permit holder under the FW Act.

4    The third respondent, Mr Harkins, admits to two accessorial contraventions of the FW Act – one of s 494 and one of s 500 – which he committed by being knowingly involved in Mr Hassett’s contravention of s 494 on 28 May 2019. He also admits to a further contravention of s 500 as principal on 28 May 2019.

5    The applicant agrees that there is an overlap between Mr Harkins’ accessorial contraventions of ss 494 and 500 of the FW Act, and that accordingly that conduct should attract a single penalty, resulting overall in two separate penalties being imposed on Mr Harkins. In light of the agreement between the parties on that question, in my view it is appropriate that I proceed accordingly. See Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 100 [149] (Dowsett, Greenwood and Wigney JJ) (“[i]n an appropriate case … the Court may impose a single penalty for multiple contraventions where that course is agreed or accepted as being appropriate by the parties”).

6    The first respondent (the CFMMEU) admits that pursuant to s 793 of the FW Act the conduct of Messrs Hassett and Harkins is taken to be its conduct and that, as a consequence, the CFMMEU contravened s 494 on three occasions, and s 500 on two occasions.

7    The applicant seeks declarations in relation to each of the contraventions (which are not the subject of controversy) and pecuniary penalties, including personal payment orders against Messrs Hassett and Harkins (which are both the subject of controversy).

8    As to the declarations, I am satisfied that it is appropriate that they be made. See Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 87 [90]-[93] (Dowsett, Greenwood and Wigney JJ).

The admitted facts

9    Vos Construction & Joinery Pty Ltd (Vos) was the head contractor for the Project. Vos employed managers to oversee the works at the Project, including relevantly Mr Jeremy Brown (site foreman), Mr Andrew Boucher (site manager) and Mr Brendan Baynes (project manager).

10    Messrs Hassett and Harkins are, and were at all relevant times, officers of the CFMMEU.

11    Mr Hassett was not a permit holder under the FW Act. Mr Harkins was.

12    Messrs Hassett and Harkins each held a “WHS entry permit” under the Work Health and Safety Act 2012 (Tas) (the WHS Act).

23 May 2019

13    At approximately 11am on 23 May 2019, Mr Hassett entered the Project. He walked unsupervised through the construction area, spoke with workers and took video footage on his mobile phone.

14    Mr Hassett then entered the site office from the construction area and spoke with Messrs Brown and Boucher. Mr Hassett said words to the effect of “you’ve got noncompliance throughout the building. There’s asbestos problems. There’s electrical problems, and you’ve got to get it all fixed or we’ll shut down the site Monday”.

15    Mr Boucher and Mr Hassett had an exchange to this effect:

 BOUCHER:    Are you allowed to be on site?

 HASSETT:    What do you mean?

BOUCHER:    We have got this [referring to an Australian Building and Construction Commission smartphone app]. I’m following the guidelines and our procedures. It says you’re not allowed on site.

HASSETT:    That’s bullshit. It’s a state site. I’m allowed to do it. Here’s my badge for work.

16    Mr Hassett said “I’ve still got a work health and safety permit. I’m still allowed to be on site under section 117 of the Act” and “I’m in Tasmania. I’m allowed to come on and write this form under my card”.

17    Mr Hassett produced his WHS entry permit to Mr Boucher, who made a photocopy of it. He also issued Mr Boucher a notice under the WHS Act that:

(a)    was on CFMMEU letterhead;

(b)    identified Mr Hassett as an “EPH” (being an entry permit holder under the WHS Act);

(c)    listed the premises to which the notice applied as the Project;

(d)    was dated 23 May 2019;

(e)    was signed by Mr Hassett;

(f)    said “entry to the premises is authorised by section 117 of the [WHS Act]”;

(g)    listed the suspected contraventions to which it related as:

(i)    “an unsafe work environment as a result of introducing a new procedure, work method, substance, system, equipment etc. without consultation”;

(ii)    “slip/trip/fall hazards as a result to poor housekeeping [sic]”; and

(h)    listed details of the suspected contraventions as “A/S 2013 / Asbestos exposure”.

18    Mr Boucher asked Mr Hassett how he knew about the asserted asbestos issue, to which Mr Hassett said that someone (whom he did not identify) had told him that there was exposure to asbestos.

19    Mr Hassett asked to speak to the quality, safety, health and environment manager, who was not at the Project. Mr Brown called the manager, who said that he was available to attend the Project the following morning. After being informed of this, Mr Hassett then said words to the effect of: “Okay, we’ll come in then and see what he thinks about some of these issues”. Mr Hassett then left the Project.

28 May 2019

20    At approximately 11am on 28 May 2019, Messrs Hassett and Harkins entered the Project, and were met by Messrs Baynes and Boucher in the site office. Mr Baynes asked Mr Harkins for his right of entry notice. Mr Harkins said “there it is. Get the book out”.

21    Mr Harkins then started to fill out a notice under the WHS Act (the 28 May WHS Notice) that:

(a)    was on CFMMEU letterhead;

(b)    identified each of Messrs Hassett and Harkins as an “EPH” (being an entry permit holder under the WHS Act);

(c)    listed the premises to which the notice applied as the Project;

(d)    was dated 28 May 2019;

(e)    was signed by either Mr Hassett or Mr Harkins;

(f)    said “entry to the premises is authorised by section 117 of the [WHS Act]”;

(g)    listed the suspected contraventions to which it related as:

(i)    “an unsafe work environment as a result of introducing a new procedure, work method, substance, system, equipment etc. without consultation”;

(ii)    “unsafe equipment”;

(iii)    “inadequate emergency and evacuation procedures”;

(iv)    “inadequate emergency and evacuation lighting & signage”; and

(h)    listed details of the suspected contraventions as “re inspect non-compliant work site”.

22    Mr Baynes said to Mr Hassett that he (Mr Hassett) had no authority to be on the site and asked him to leave. Mr Hassett refused and said to Mr Baynes “I can do whatever I fucking like”.

23    Mr Brown joined the group and asked Mr Harkins to specify the unsafe equipment to which he wanted to be taken. Mr Harkins responded in a loud and intimidating manner, saying words to the effect of:

Don’t get smart with me, arsehole. I’m nearly at the end of my career. I don’t give a fuck about what happens to me, but that bloke over there will be onto you [pointing to Mr Hassett].

24    Mr Brown again asked what the safety breaches were, to which Mr Harkins responded: “You don’t fucking pay me, so I’m not going to tell you”.

25    Mr Harkins provided the 28 May WHS Notice to Mr Brown.

26    Messrs Hassett, Harkins and Clark (an official from the Communications, Electrical and Plumbing Union who also attended the Project) then walked towards a temporary switchboard located approximately 10 metres from the site office (the ground floor switchboard). Upon inspecting it, Mr Hassett said words to the effect of “that’s non-compliant AS3012”.

27    Mr Brown said to the union officials that “it would be helpful if you can actually give us some direction as to why it’s non-compliant”. Mr Harkins responded “no, it’s not our bloody job to do that”.

28    One of the union officials then turned off the power, causing all the lights in the area to switch off. The union officials proceeded to walk through various levels of the Project with the Vos representatives and to point out the safety issues to them.

29    On level one of the Project, Mr Harkins inspected another switchboard and said words to the effect of “look, this isn’t safe. Look, that’s not wired in properly. This isn’t a proper temporary light or emergency light”, following which one of the union officials switched off the power on the switchboard.

30    Mr Harkins then walked to the end of level one of the Project and approached a group of workers who were engaged by a plastering contractor at the Project, Hi-Lite. He introduced himself as being from the union, and spoke to the workers for approximately five minutes.

31    Mr Baynes then asked Mr Harkins to leave the Project, to which Mr Harkins responded “get fucked”.

32    Mr Baynes told Mr Harkins that he (Mr Baynes) was about to call the police. Mr Harkins then held out his hand as if to shake Mr Baynes’ hand, and said in a sarcastic manner “congratulations”. Mr Harkins continued to walk around the Project.

33    Mr Baynes then called the police.

34    Two police officers, Constable Mellisa Burtt and Sergeant Anna Lang, arrived at the Project and met with the union officials and Vos representatives on level three. Mr Harkins represented himself to Constable Burtt and Sergeant Lang as the spokesperson for the union officials at the Project.

35    Whilst on level three of the Project, the following exchange took place between Messrs Baynes and Harkins and Sergeant Lang (in the presence of Constable Burtt and Messrs Boucher, Brown and Clark):

BAYNES:    Yeah, so the issue there is, under the Act, they are obliged to give us 24 hours’ notice in writing.

 HARKINS:     No we’re not. That’s not correct.

 LANG:        So, OK. I have been made aware of that.

 BAYNES:    And Richie Hassett isn’t even a registered … so he shouldn’t be here.

 LANG:        So …

 HARKINS:     You’re wrong twice.

 BAYNES:    That’s not the information I’ve been given.

HARKINS:     So under section one hundred, ah 117. So there’s two ways we can give notice, you can either give 24 hours’ notice to enter.

 LANG:        Yeah, which is what I’m aware of, yes.

HARKINS:     Yeah, so this is health and safety. Under the industrial law we’ve gotta give 24 hours’ notice. Under the health and safety law, we can give either 24 hours’ notice or if we think there is a serious possibility that someone will be injured or killed, then we don’t have to give that 24 hours’ notice. We provide this [28 May WHS Notice] when we walk on the job and we’ve come in to do a re-inspection, ‘cause we got a phone call into the office this morning, telling us the job hadn’t been made safe. So we thought we’ll come down here, we’ve rang him up, he’s an electrician, this is Clarky, and we’ve come down here to do an inspection on the job under 117.

36    In response to Sergeant Lang asking why Mr Harkins could not provide advance notice of when he would be entering the Project the next time under s 117 of the WHS Act, Mr Harkins said words to the effect of “because … as you know, same job as you, I’m a policeman except I look after construction workers and you are a police person and you look after everyone”.

37    After several minutes, the union officials, Vos representatives and police officers moved to the ground floor of the Project. The police officers continued to enquire into the union officials’ entitlement to enter and remain on the Project, particularly the entitlement of Mr Hassett. A further exchange took place between Constable Burtt, Sergeant Lang and Mr Harkins (in the presence of Messrs Baynes and Boucher) to the following effect:

BURTT:    Just re your offsider out there, Richie, are you aware he’s got no federal permit at the moment?

 HARKINS:    No, that’s not right. Alright.

 LANG:        We just saw that on the …

 HARKINS:    Yeah, yeah. Look, he’s being a smart arse … [pointing at Mr Baynes]

BURTT:    No, we just looked it up and we are also awaiting a call back from your solicitor.

HARKINS:    There’s two permits. There is a federal right of entry permit which is an industrial permit. There’s a health and safety permit which is based on the State Health and Safety Act, he’s still got one.

38    The group moved to the site office on the Project (also on the ground floor), where an exchange involving Sergeant Lang, Constable Burtt, Mr Hassett and Mr Harkins (in the presence of Messrs Clark, Brown, Boucher and Baynes) took place to the following effect:

LANG:    Obviously we’ve just noticed you’re not – you don’t have one of the other permits under the other legislation.

 HASSETT:    I don’t need one.

 HARKINS:    Cause we entered under – for health and safety.

LANG:    Yeah, and that’s I said that you mentioned before … there’s obviously clearly two different types.

 HARKINS:    State Act …

BURTT:    We just want to clarify everyone’s argument is the same ... it’s all good next time … this won’t happen again.

HARKINS:     But the issue for us at the moment is irrespective of whether he’s got a permit or not, we’ve got an unsafe project up here.

39    Soon afterwards, Mr Millhouse (construction manager) arrived at the Project and entered the site office. During a further discussion concerning Mr Hassett’s authority to enter the Project, Mr Harkins said to Sergeant Lang (in the presence of Constable Burtt and Messrs Hassett, Clark, Brown, Boucher, Baynes and Millhouse): “He hasn’t got a Right of Entry Notice under the industrial laws, but he’s got a Work Health and Safety Permit to come on these jobs. So that’s end of story”.

40    A further exchange then took place to the following effect:

HARKINS:    No just so you know, for your own information, I don’t mind admitting it. He’s got a permit at the moment, he was issued one in February. There’s an argument about whether it still exists or not. But that’s … lawyer’s that are way above our heads, way up here somewhere, you know QCs and Barristers and all that shit. They’ll spend the next two years arguing about that and while they’re arguing he’s still got a permit.

 LANG:        Well on the list it says he doesn’t.

 HARKINS:     No, on the industrial relations list, on the health and safety list he has.

LANG:    Yes but on the industrial relations one which is what you are talking about, he doesn’t have one–

 HARKINS:     Yes.

 LANG:        He is listed as not having a permit.

 HARKINS:     Yes, that’s right

 HASSETT:    That’s right. I don’t have one.

41    The police then left the Project. Messrs Hassett, Harkins and Clark left the Project shortly thereafter.

The applicable principles

42    I did not understand the parties to dispute the principles to be applied in assessing appropriate penalties.

43    They were restated by a five-member Full Court in Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177. It is not necessary to burden these reasons with a recital of those reasons. It suffices to say for present purposes that the Full Court affirmed at [98], [197] (Allsop CJ, White and Wigney JJ) and [226] (Besanko and Bromwich JJ agreeing) that:

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

…

[T]he 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.

44    See too, by way of example, Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 at 167-168 [19]-[22] (Allsop CJ, White and O’Callaghan JJ); Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208 at 231 [93] (Bromwich J, dissenting).

45    In assessing the appropriate penalties to impose, it is, of course, necessary to have regard to the maximum penalties applicable at the time that the contraventions occurred. The maximum penalty that may be imposed on the CFMMEU for each contravention in this case is $63,000. For the individual respondents, it is $12,600.

Consideration

Mr Hassett

46    Sections 494(1) and 494(2) of the FW Act, read with s 117 of the WHS Act, mean that an official of an organisation requires a permit under the FW Act to enter premises when exercising his or her right to inquire into a suspected contravention of the WHS Act. See, by way of example only, Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470 at 482 [59] (Allsop CJ, White and O’Callaghan JJ).

47    Mr Hassett was at the time of the contraventions (i) an official of the CFMMEU and (ii) not a permit holder. That means that, having entered the Project on both 23 and 28 May 2019 seeking to exercise rights under the WHS Act, he contravened s 494(1) and may be liable to pay civil penalties.

48    Mr Hassett must have known that by entering the Project in those circumstances he was acting unlawfully. Quite apart from anything else, his own counsel told me on 2 May 2019 in the course of making submissions about deterrence in another proceeding (Australian Building and Construction Commissioner v Hassett [2019] FCA 855) that Mr Hassett had ceased being a permit holder and was no longer able to exercise entry rights under the FW Act or the WHS Act. Counsel’s written submissions on the question of deterrence relied upon in that case included the following:

Specific deterrence focuses on the party the penalty is to be imposed on and the likelihood of that party being involved in similar wrongdoing in the future.

[Mr Hassett] ceased being a permit holder on 11 December 2018. He is no longer able to exercise entry rights under either the FW Act or the WHS Act. All his prior contraventions of the FW Act have stemmed from the exercise, or attempted exercise, of entry rights. There is no longer any potential for him to exercise entry rights as he is not a permit holder.

This is relevant to assessing the need for specific deterrence and the role of specific deterrence in the sentencing exercise. Whilst specific deterrence is still pertinent, given that the First Respondent remains an official of the [CFMMEU], the fact he is no longer a permit holder means it plays a lesser role in fixing appropriate penalties.

(Citations omitted.)

49    Those submissions by counsel were, as counsel for the respondents in this case agreed, properly made on instructions from Mr Hassett.

50    In those circumstances, Mr Hassett must have known that it was unlawful for him to enter the Project as he did on 23 and 28 May 2019 seeking to exercise entry rights without a permit.

51    It follows that the contraventions were deliberate and serious.

52    Mr Hassett is also a recidivist.

53    In that regard, the written submissions of counsel for the applicant describe his previous contraventions as follows (none of which was disputed):

(a)    On 28 July 2015 in Hobart, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner by (i) failing to provide notice of his entry, (ii) failing to enter on a day specified in such a notice, (iii) holding discussions with workers outside of mealtimes or other break times, and (iv) using foul language, while exercising a right of entry under s 484 of the FW Act. A penalty of $5,000 (the maximum available being $10,200) was imposed. Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Parliament Square Case) (No 2) [2018] FCA 1201.

(b)    On 21 October 2015 in Hobart, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner by (i) failing to provide notice of his entry, (ii) failing to enter on a day specified in such a notice, (iii) holding discussions with workers outside of mealtimes or other break times, and (iv) dismissively ignoring advice from site management that he should not be on the site, while exercising a right of entry under s 484 of the FW Act. A penalty of $5,500 (the maximum available being $10,800) was imposed. Ibid.

(c)    On 5 November 2015 in Hobart, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner by (i) failing to provide notice of his entry, (ii) failing to produce an entry notice when asked to do so by site management, (iii) refusing to leave the site when requested, and (iv) using offensive language, while exercising a right of entry under s 484 of the FW Act. A penalty of $6,000 (the maximum available being $10,800) was imposed. Ibid.

(d)    On 5 November 2015 in Hobart, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner by directing unnecessary and gratuitous abuse to site management while exercising a state OHS right of entry under s 494(2) of the FW Act. A penalty of $1,500 (the maximum available being $10,800) was imposed. Ibid.

(e)    On 12 October 2016 near Hobart, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner while exercising rights as a permit holder under s 484 of the FW Act by (i) failing to give notice of his attendance, (ii) remaining on site after being directed to leave, and (iii) aggressively and repeatedly using foul and abusive language. A penalty of $7,500 (the maximum available being $10,800) was imposed. Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214.

(f)    On 5 June 2017 in Devonport, Mr Hassett contravened s 499 of the FW Act by failing to comply with a reasonable request to comply with an occupational health and safety requirement that applied to a construction site. Australian Building and Construction Commissioner v Hassett [2019] FCA 855.

(g)    On 5 June 2017 in Devonport, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner while exercising, or seeking to exercise, his entry rights under the FW Act by (i) climbing on a crane while it was in operation, (ii) ignoring requests to get off the crane, and (iii) using insulting language and engaging in abusive behaviour. A penalty of $8,000 (the maximum available being $10,800) was imposed. Ibid.

(h)    On 6 June 2017 in Devonport, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner while exercising, or seeking to exercise, his entry rights under the FW Act by climbing on a crane while it was in operation and causing work to stop. A penalty of $6,000 (the maximum available being $10,800) was imposed. Ibid.

(i)    On 16 January 2019 at the Cattle Hill Wind Farm on Macclesfield Road, Lake Echo, Tasmania, Mr Hassett contravened s 494(1) of the FW Act by exercising a state OHS right without an entry permit issued by the Fair Work Commission pursuant to s 512 of the FW Act. A penalty of $10,000 (the maximum available being $12,600) was imposed. Australian Building and Construction Commissioner v Hassett [2020] FCA 498.

54    Mr Hassett’s conduct was also flagrant. He knew that he was not permitted to enter the Project for the (health and safety) reasons he gave; he was reminded that he was not so permitted; yet he insisted (among other things) that the idea that he was not allowed on site was “bullshit” (the term he used on 23 May) and that he could (as he put it on 28 May) “do whatever [he] fucking like[d]”.

Mr Harkins

55    The applicant correctly explained the basis of Mr Harkins’ contravention of s 494 as follows:

On 28 May 2019, Mr Harkins was a permit holder under the FW Act and knew that Mr Hassett was not. He knew that Mr Hassett had entered the Project for the purpose of inquiring into one or more suspected contraventions of the WHS Act and entered the Project with him with that common purpose. Mr Harkins filled out the 28 May WHS Notice listing Mr Hassett as an ‘EPH’ (entry permit holder) and accompanied Mr Hassett while he inspected the ground floor switchboard which Mr Hassett declared to be ‘non-compliant’. Mr Harkins had knowledge of all of the essential elements of Mr Hassett’s contravention of s 494 of the FW Act [and] was knowingly concerned in or party to that contravention. In the circumstances, Mr Harkins is taken to have contravened s 494 of the FW Act himself.

56    It is obvious from what Mr Harkins said in his exchanges with Sergeant Lang that he knew that Mr Hassett was not a permit holder. For example, when Sergeant Lang said that Mr Hassett did not have a permit under the “other legislation”, and Mr Hassett responded that he did not “need one”, Mr Harkins explained that this was because “we entered under – for health and safety” and that “irrespective of whether he’s got a permit or not, we’ve got an unsafe project up here”. Further, in another discussion with Sergeant Lang, Mr Harkins said “he hasn’t got a Right of Entry Notice under the industrial laws, but he’s got a Work Health and Safety Permit to come on these jobs. So that’s end of story”.

57    In my view, Mr Harkins’ contravention of s 494 was deliberate and therefore serious.

58    The applicant alleges, and Mr Harkins admits, that Mr Harkins contravened s 500 of the FW Act by acting in an improper manner in two ways: (i) by being knowingly concerned in or party to Mr Hassett’s contravention of s 494 of the FW Act, and (ii) by his own conduct.

59    As to (i), the conduct establishing this contravention was also the conduct that established Mr Harkins’ contravention of s 494 (see [55]-[56] above). In those circumstances, as I have said, the parties agreed that it would not be appropriate to impose two separate penalties for these contraventions.

60    As to (ii), s 500 of the FW Act relevantly provides that “[a] permit holder exercising, or seeking to exercise, rights in accordance with this Part must not … act in an improper manner”.

61    Permit holders act in an improper manner for the purposes of s 500 when they fail to conform to the standards of conduct to be expected of them by reasonable persons having knowledge of their duties, powers and authority, and of the circumstances of the case. The characterisation of conduct as improper is an objective one and it does not depend on the permit holder’s intention. See, eg, Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) (2018) 258 FCR 158 at 165-166 [39] (Dowsett, Tracey and Charlesworth JJ).

62    Mr Harkins self-evidently acted in an improper way within the meaning of s 500. It is obviously improper for a person holding an entry permit and entering a site under the guise of health and safety concerns to behave as follows:

(a)    acting in a loud and intimidating manner toward Mr Brown, the Site foreman, when asked what safety equipment was unsafe, and saying to him words to the effect of “don’t get smart with me, arsehole. I’m nearly at the end of my career. I don’t give a fuck about what happens to me, but that bloke over there will be onto you [pointing to Mr Hassett]”;

(b)    responding to a request to identify safety breaches with “you don’t fucking pay me, so I’m not going to tell you”; and

(c)    responding to Mr Baynes asking him (Mr Harkins) to leave by telling Mr Baynes to “get fucked”.

The CFMMEU – course of conduct

63    The respondents submitted that the contraventions of Messrs Hassett and Harkins on 28 May 2020, as attributed to the CFMMEU, formed one course of conduct by it.

64    The course of conduct principle has been dealt with in a number of the cases in the civil penalty context, including by the Full Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 91-92 [111]-[115] (Dowsett, Greenwood and Wigney JJ). As Owen JA explained in a criminal sentencing context in Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 at 328 [22]:

At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.

65    Justice White, with respect, correctly and conveniently (at least for the limited purposes of this case) summarised the application of the common law course of conduct principle in Australian Building and Construction Commissioner v Menon [2020] FCA 1418 at [80] as follows:

(a)    the purpose of the principle is to ensure that, having regard to all the circumstances (both factual and legal), a contravenor is not penalised more than once for the same conduct;

(b)    in this way, the principle serves as a technique of analysis;

(c)    the application of the principle requires a careful evaluation of all the circumstances;

(d)    the principle does not require that two or more contraventions occurring in a single course of conduct be treated as a single contravention;

(e)    the principle does not have the effect that the maximum penalty for a single contravention becomes the maximum for all contraventions committed in the one course of conduct; and

(f)    the principle does not permit the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. Each contravention continues to attract its own separate penalty.

66    The CFMMEU submitted with respect to the 28 May 2019 contraventions as follows:

In the current matter, there was a factual relationship between the contraventions of Mr Hassett and Mr Harkins which were attributed to the CFMMEU. They occurred at the same worksite, during the same time period and were directed to the same contractor, Vos. The s 494(1) contraventions attributed to the CFMMEU were further related as they arose from Mr Hassett’s principal contravention and Mr Harkins’ … liability for it. The contraventions were legally related as they were the result of attribution by the combined operation of ss 793 and 550. The course of conduct principle is, in the circumstances, triggered in relation to the CFMMEU’s contraventions. Penalties to be imposed on the CFMMEU for its contraventions on 28 May 2020 should … be moderated to ensure against double punishment.

67    I agree.

Other matters to take into account

68    It is, nowadays, a notorious fact that the CFMMEU is a well-resourced, recidivist offender of workplace laws. No point is served here by adding to the plethora of descriptors of its conduct. According to the unchallenged submission of the applicant, the CFMMEU has contravened industrial legislation more than 170 times in the two decades prior to the conduct that gave rise to this proceeeding, and as this court has said on many occasions, the union regards paying penalties as part of “doing business”.

69    The respondents submitted, and I accept, that the following factors operate by way of mitigation:

(a)    the admissions made by each of the respondents were made at an early stage of the proceedings and, as a result, the applicant has not been put to the expense of preparing a case for trial, and the court has been spared a contested factual hearing on liability;

(b)    there was no demonstrable financial loss or other damage caused by the unlawful conduct of Messrs Hassett and Harkins;

(c)    Messrs Hassett and Harkins have received individual training from Mr Brian Lacy AO, including in relation to the contraventions the subject of this proceeding and other proceedings, which Mr Lacy says they understood;

(d)    although (understandably) delayed by COVID-19 related restrictions, training (the purpose of the training is to ensure that the individuals have the requisite knowledge to enable compliance with their responsibilities and obligations) has also been arranged for CFMMEU organisers and shop stewards, members of the Branch Executive and those organisers and shop stewards who have been named respondents in penalty proceedings in relation to contraventions of workplace laws;

(e)    the contravening conduct was isolated, in the sense that it was directed to a set of safety issues at one worksite and was not part of some wider and coordinated campaign; and

(f)    Mr Harkins has been a union official for some 25 years and has contravened industrial law once, 13 years earlier.

Personal payment orders

70    The applicant sought personal payment orders against both Mr Hassett and Mr Harkins.

71    I propose to make such an order in respect of Mr Hassett, but not Mr Harkins.

72    As I explained in Australian Building and Construction Commissioner v Hassett [2020] FCA 498 at [56], Mr Hassett was given a chance for reflection by Tracey J in 2018 in relation to his conduct as a permit holder, but he did not take it.

73    Mr Harkins cannot be described as a recidivist (unlike Mr Hassett), and in my view the circumstances viewed as a whole do not warrant the making of a personal payment order against him in this case.

Disposition

74    The parties, needless to say, differed about where in the range of things the conduct falls. The respondents said that the contraventions were either in the low range or middle range. The applicant said that they were in either the high or maximum range.

75    For the reasons given above, I do not accept the respondents’ submission that their conduct falls within the low or medium range. Nor do I accept the proposition that any contravention warrants the imposition of a maximum penalty. That would not accord with the principle of proportionality, because although the conduct of Messrs Hassett and Harkins was serious and deliberate, and flagrant, it is not realistically to be regarded as being of the worst kind. But in my view the penalties must be fixed towards the higher end of the range.

76    In light of the conclusions I have expressed above, and bearing in mind that penalties are imposed for the contraventions before the court, and not earlier contraventions, I propose to impose the following penalties:

(a)    upon Mr Hassett:

(i)    $10,000 in respect of his contravention of s 494 on 23 May 2019;

(ii)    $10,000 in respect of his contravention of s 494 of 28 May 2019;

(b)    upon Mr Harkins:

(i)    $8,000 in respect of his contraventions of ss 494 and 500 on 28 May 2019 by reason of his knowing involvement in Mr Hassett’s contravention of s 494;

(ii)    $8,000 in respect of his contravention of s 500 on 28 May 2019 as principal;

(c)    upon the CFMMEU:

(i)    $50,000 in respect of its contravention of s 494 on 23 May 2019 arising from Mr Hassett’s contravention of that provision;

(ii)    $45,000 in respect of its contravention of s 494 on 28 May 2019 arising from Mr Hassett’s contravention of that provision;

(iii)    $45,000 in respect of its contraventions of ss 494 and 500 on 28 May 2019 arising from Mr Harkins’ contraventions of those provisions by reason of his knowing involvement in Mr Hassett’s contravention; and

(iv)    $45,000 in respect of its contravention of s 500 on 28 May 2019 arising from Mr Harkins’ contravention of that provision as principal.

Totality

77    In arriving at these penalties, I have had regard to the overall seriousness of the contraventions, and the need for the penalties in aggregate to be appropriate to the seriousness of the contraventions and the conduct as a whole, consistently with the totality principle. See, by way of example only, Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 583 [102] (Buchanan J).

Associate:    

Dated:    3 December 2020