Federal Court of Australia
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the WGC Cranes Case) [2021] FCA 622
ORDERS
DATE OF ORDER: |
PENAL NOTICE
TO: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION, SIMON GUTIERREZ AND GERASIMOS “MAKI” DANALIS IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. |
THE COURT DECLARES THAT:
1. On 15 October 2018 at Five Islands Road, Port Kembla in the State of New South Wales (the Ross Transport Yard) the second respondent, Simon Gutierrez (Gutierrez), contravened s 54(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) by taking action against Marc Sergi and WGC Crane Group Pty Ltd (t/as WGC Cranes) (WGC) with intent to apply undue pressure to WGC to make or approve a building enterprise agreement on terms proposed by the first respondent (Union).
2. On 15 October 2018 at the Ross Transport Yard the third respondent, Gerasimos Danalis (Danalis), contravened s 54(1) of the BCIIP Act by taking action against Marc Sergi and WGC with intent to apply undue pressure to WGC to make or approve a building enterprise agreement on terms proposed by the Union.
3. On 15 and 16 October 2018 at the Port Kembla Coal Terminal at Port Kembla Road, Wollongong in the State of New South Wales, Mr Danalis contravened s 54(1) of the BCIIP Act by taking action against Port Kembla Coal Terminal and WGC with intent to apply undue pressure to WGC to make or approve a building enterprise agreement on terms proposed by the Union.
4. By reason of ss 94 and 95 of the BCIIP Act the conduct in which Mr Gutierrez engaged at the Ross Transport Yard on 15 October 2018 is taken to have been engaged in by the Union and the actions of Mr Gutierrez are taken to be actions of the Union so that the Union also contravened s 54(1) of the BCIIP Act.
5. By reason of ss 94 and 95 of the BCIIP Act the conduct in which Mr Danalis engaged at the Ross Transport Yard on 15 October 2018 is taken to have been engaged in by the Union and the actions of Mr Danalis are taken to be actions of the Union so that the Union also contravened s 54(1) of the BCIIP Act.
6. By reason of ss 94 and 95 of the BCIIP Act the conduct in which Mr Danalis engaged at the Port Kembla Coal Terminal on 15 and 16 October 2018 is taken to have been engaged in by the Union and the actions of Mr Danalis are taken to be actions of the Union so that the Union also contravened s 54(1) of the BCIIP at the Port Kembla Coal Terminal on those days.
7. On 15 October 2018 the Union contravened s 346 of the Fair Work Act 2009 (Cth) (FW Act) by taking adverse action against John Williams in the form of making a Facebook post containing a photograph of Mr Williams because he engaged in industrial activity within the meaning of s 347(b) of the FW Act in that he was not participating in industrial action in which WGC employees were engaged, being a lawful activity organised and promoted by the Union.
THE COURT ORDERS THAT:
8. Mr Gutierrez pay a penalty of $6,000 in respect of his contravention of s 54(1) of the BCIIP Act on 15 October 2018.
9. Mr Danalis pay a penalty of $4,800 in respect of his contravention of s 54(1) of the BCIIP Act on 15 October 2018.
10. Mr Danalis pay a penalty of $8,000 in respect of his contravention of s 54(1) of the BCIIP Act on 15 and 16 October 2018.
11. The Union pay a penalty of $100,000 in respect of its contravention of s 54(1) of the BCIIP Act by reason of Mr Gutierrez’s conduct on 15 October 2018.
12. The Union pay a penalty of $100,000 in respect of its contravention of s 54(1) of the BCIIP Act by reason of Mr Danalis’s conduct on 15 October 2018.
13. The Union pay a penalty of $120,000 in respect of its contravention of s 54(1) of the BCIIP Act by reason of Mr Danalis’s conduct on 15 and 16 October 2018.
14. The Union pay a penalty of $44,000 for its contravention of s 346 of the FW Act.
15. Each of the pecuniary penalties be paid to the Commonwealth of Australia within 28 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KATZMANN J:
Introduction
1 Amongst other things, s 54(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) prohibits a person from organising or taking action with intent to coerce, or apply undue pressure to, another person to agree to make or approve an enterprise agreement that applies to building work unless the action in question is “protected industrial action” within the meaning of the Act. Section 346 of the Fair Work Act 2009 (Cth) (FW Act) relevantly prohibits a person from taking adverse action against another person because the other person does not engage, has not engaged or does not propose to engage, in industrial activity within the meaning of s 347 of that Act.
2 This is an application by the Australian Building and Construction Commissioner for declaratory and other relief for contraventions of those provisions by the Construction, Forestry, Maritime, Mining and Energy Union (Union) and for contraventions of s 54(1) by two of its officers. It arises out of a dispute between the Union and WGC Crane Group Pty Ltd (WGC), which trades as WGC Cranes, over the terms of a proposed enterprise agreement.
3 The originating application was filed on 29 October 2019. The Union was named as the first respondent and seven individuals, all allegedly officers, employees and members of the Union, were also named as respondents. Defences were filed by all respondents on 17 February 2020. On 25 May 2020 the Commissioner filed his evidence. Programming orders were made in September 2020 and the matter was listed for hearing on the question of liability in March and June this year. On 26 February 2021, however, the Commissioner discontinued the proceedings against the fourth to eight respondents. The pleadings were later amended, with the remaining respondents making a number of admissions, and the matter was fixed for hearing to determine the orders, particularly the penalties for the admitted contraventions.
The facts
4 The facts were largely agreed and otherwise not contested. I make the following findings based on the parties’ statement of agreed facts.
Background
5 At all material times WGC was the operator of two main depots. They were the Wollongong depot at 49 Industrial Road, Unanderra (Wollongong depot) and the Smeaton Grange depot located at 11–15 Orielton Road, Smeaton Grange (Smeaton Grange depot).
6 Before October 2018, WGC was covered by two enterprise agreements made with the Construction, Forestry Mining and Energy Union (CFMEU), as the Union then was, under s 186 of the FW Act. The Union is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (Registered Organisations Act) and a building association and building industry participant within the meaning of s 5 of the BCIIP Act.
7 On or about 27 April 2018, Marc Sergi, Area Manager of WGC, met with Darren Greenfield, Secretary of the NSW Branch of the Union’s Construction and General Division. Mr Greenfield indicated that the Union wished to initiate bargaining for a new building enterprise agreement and provided Mr Sergi with a proposed enterprise agreement.
8 WGC did not agree to the Union’s proposed agreement. WGC rejected the Union’s proposed agreement and provided the Union with a copy of its proposed agreement.
9 The Union did not agree to WGC’s proposed agreement and applied to the Fair Work Commission (FWC) for a protected industrial action ballot. The FWC granted its application and on 20 August 2018, the Union gave notices to WGC that it would take industrial action in the form of indefinite strike action commencing at 5 am on 27 August 2018. On 31 August 2018, however, the FWC made orders preventing the employees of WGC from taking industrial action for a period of three months. On 8 October 2018 the FWC allowed an appeal by the Union and the order preventing industrial action was reduced to two weeks.
10 The Union notified WGC that the industrial action would begin on 15 October 2018.
11 On or about 11 October 2018, Mr Sergi arranged for employees of Freo Group Pty Ltd, a related entity of WGC, to be rostered on jobs in the event that WGC employees took part in the industrial action scheduled to start on 15 October 2018.
12 On or about 14 October 2018, Mr Sergi arranged for WGC’s cranes and trucks to be moved out of the Wollongong depot to locations including a transport yard owned by Ross Transport at Five Islands Road, Port Kembla (Ross Transport Yard). The same day, Troy Blackmore, WGC Manager, arranged for WGC’s cranes and trucks to be moved out of the Smeaton Grange depot to various sites in and around Sydney.
13 At about 5 am on 15 October 2018 Mr Sergi attended the Wollongong depot to collect the keys to one of the cranes intended to be used for work that day at the premises of a client of WGC. At that time, approximately 40 individuals had formed a picket line outside the Wollongong depot, brandishing Union banners and flags.
The events at the Ross Transport Yard on 15 October 2018 and their consequences
14 Mr Sergi then drove to the Ross Transport Yard where, at about 6 am, he met Glen Dorrian, WGC’s Project Supervisor. Present at the yard at the time he arrived were John Williams, a 66 year old crane operator employed by WGC who was going to work that day for WGC; Jose Aragon, a dogman employed by Freo; and Simon Gutierrez, an employee and member of the Union and therefore an official of the Union within the meaning of s 94 of the BCIIP Act. He was also an officer and agent of the Union within the meaning of s 95 of the Act.
15 Shortly after Mr Sergi met with Mr Dorrian, Gerasimos (known as Maki) Danalis arrived at the yard. Mr Danalis was another employee and member of the Union and therefore an official of the Union within the meaning of s 94 of the BCIIP Act and an officer and agent of the Union within the meaning of s 95 of the Act.
16 Mr Danalis parked his car very close to two WGC cranes making it impossible to move them. Mr Sergi asked Mr Danalis to move his car away from the cranes but he refused, saying words to the effect of: “The cranes can’t go out; there’s a strike on”. Mr Sergi said he would call the police but Mr Danalis still refused to move his car. Mr Danalis’s car continued to block the two WGC cranes until about 7.30 am the following day when the police arrived and spoke to Mr Gutierrez who then moved the car away from the cranes.
17 Mr Gutierrez approached Mr Williams and began abusing and arguing with him, standing close to him in an intimidatory manner. Mr Gutierrez filmed or photographed Mr Williams with his mobile phone, holding the phone close to Mr Williams’ face. When Mr Williams tried to brush the phone aside, Mr Gutierrez said: “Did you get that? We’re going to sue you. You just hit a union official”.
18 Mr Gutierrez said to Mr Dorrian words to the effect: “What are you doing? The boys are on strike. You don’t need to work here. Don’t be a dog. Don’t be a scab. Go home.” Mr Danalis said to Mr Dorrian words to effect: “You don’t need to work here. Your Dad’s from Wollongong. He was in the unions.”
19 As a result of the actions of Mr Danalis, Mr Williams and Mr Aragon became concerned about what the Union might do and publish in relation to them. To protect their reputations and their safety they refused to work that day and for the duration of the industrial action.
20 Later that day a photograph of Mr Williams at the Ross Transport Yard was posted by the Union on its Facebook page without Mr Williams’ consent. The photograph was accompanied by the caption:
British and World English scab
Definition of scab in English:
scab: A person who refuses to strike or join a trade union or who takes the place of a striking worker. The sense ‘contemptible person’ (dating from the late 16th century)
21 Other users of Facebook posted derogatory comments beneath the photograph. Strike breakers were referred to in those comments as “grubs”, “leeches”, “maggots”, “dogs”, and worse. One commentator wrote (without alteration) that:
Someone should break into the dogs houses and steal the food from their cupboards just as they are stealing the food from the good blokes kids mouths that are standing up for themselves.
22 The photograph, caption and comments remained published until the morning of 18 October 2018.
23 The actions of both Mr Gutierrez and Mr Danalis encouraged Mr Williams and Mr Aragon to breach their contracts with WGC. These actions were adverse to WGC in that they prevented employees from working and the use of its cranes to carry out scheduled work for clients on 15 October, causing loss of revenue to WGC. They were also adverse to the employment of Mr Williams and Mr Aragon.
24 WGC could not perform works scheduled at a project at Dapto Bridge because the crane that was meant to be used for this purpose was blocked by Mr Danalis’s car, causing WGC a loss of revenue of $4,000.
The events at the Port Kembla Coal Terminal on 15 and 16 October 2018
25 On 15 October 2018, Manuel Paniagua, a salaried employee and Operations Coordinator for WGC, attended a “WGC client site” at the Port Kembla Coal Terminal. Three WGC cranes were on site and eight Freo employees were scheduled to work that day pursuant to a contract for services between WGC and Port Kembla Coal Terminal (PKCT).
26 At about 9 am, Messrs Gutierrez and Danalis arrived on the site.
27 Over the ensuing four and a half hours Mr Danalis shouted abuse at Mr Gibson and Mr Finch, who were working the WGC unit 210 crane. He aggressively shouted words to the effect of: “Why are you here?”; “you shouldn’t be working here; you’re being scabs”; and “you know people are on strike”. When Mr Paniagua tried to intervene, Mr Danalis told him to “fuck off”. Mr Danalis ignored instructions from the managers of PKCT to leave the restricted area. His conduct caused delay sufficient to prevent WGC from completing the scheduled works on site.
28 At about 5.30 am the next day, Mr Paniagua returned to the site. All but one of the Freo employees were in attendance to carry out building work pursuant to WGC’s contract and PKCT.
29 At about 8 am, Mr Danalis arrived. He entered the restricted area without the permission of either WGC or PKCT and without personal protective equipment.
30 Mr Danalis approached the WGC unit 207 crane, which was being operated by Ryan Windle, one of the Freo employees, and activated its emergency stop button while the crane was in operation, causing the crane to come to a sudden stop. Mr Paniagua asked him why he had activated the emergency stop button. Mr Danalis replied in words to the following effect: “You still haven’t done anything to make the crane safe” and “you haven’t addressed our safety issues”. Mr Danalis refused to tell Mr Paniagua what the safety issues were and did not provide WGC or PKCT with a notice under s 117 of the FW Act, purportedly detailing safety concerns.
31 Mr Danalis ignored requests from managers of PKCT to leave the restricted area. He also took photographs of the work area, plant, and employees, causing the employees to hide to avoid being photographed.
32 Mr Paniagua asked Mr Danalis what he was looking for, to which Mr Danalis replied: “Your mum”.
33 Mr Danalis’s conduct that day caused Mr Paniagua to stand down the Freo employees, send three of them home and the other four to the lunch room.
34 PKCT called the police to the site. When the police arrived, Mr Danalis refused to provide them with details of the alleged safety concerns.
35 After Mr Paniagua arranged for Mr Windle to resume his work on the WGC crane, Mr Danalis took photographs of Mr Windle operating the crane and refused to delete the photographs when the manager of PKCT, Tim Rodwell, asked him to do so.
36 Mr Rodwell asked Mr Danalis and another Union organiser to identify the suspected safety concerns. Mr Danalis replied: “I am concerned the safety pins are not in the hook block, and there is no audible alarm on the crane. We want to inspect the load mass indicator, anemometer, log books and operators manuals.”.
37 Mr Rodwell and Bruce McDonald, heavy lift specialist and construction coordinator, inspected the crane and found that none of the issues were “established”.
38 Later, an agreement was reached enabling Mr Danalis and the other Union organiser to undertake a 90 minute safety audit of the WGC cranes. During the inspection, Mr Danalis persisted in raising sham safety issues concerning the cranes and the working conditions.
39 Mr Windle’s general induction for construction work card and high risk construction work with crane certification were checked and no issues were raised. The log books were also checked and, again, no issues were raised.
40 The lifting gear was then inspected. The inspection identified small tears in two soft slings which were later taken out of service.
41 Mr Danalis raised “concerns” regarding the Wollongong Cranes Safe Work Method Statement (SWMS) and stated words to the effect of: “You need to have Freo Group on the header for the SWMS instead of Wollongong Cranes”. Mr Danalis was advised that the contract was between PKCT and WGC.
42 Mr Danalis also said words to the effect of: “Wind speed is above 10 metres per second and therefore not safe for lifting”. Mr Danalis was advised that the wind speed at Port Kembla weather station was 6.7 metres per second and 8.8 metres per second.
43 A question was raised about workers compensation documentation and the documentation was provided to Mr Danalis.
44 Mr Danalis asked for manual handling training records and was advised that PKCT did not have any records. Mr Danalis noted that the Wollongong Cranes SWMS referenced the manual handling and states that it is “provided in general induction”.
45 Mr Danalis also raised concerns about the maintenance of an external audible alarm on the crane for signalling whether the crane is overloaded or out of radius. Mr Danalis was advised that this was not required and that a visual alarm was acceptable.
46 At the end of the inspection, three items were placed in dispute.
47 As a result of Mr Danalis’s conduct, WGC’s work for PKCT finished at 6.15 pm, rather than 12 to 1 pm, causing WGC to incur unspecified “extra costs”.
48 On 17 October 2018 the WGC cranes at the Port Kembla Coal Terminal were inspected by Safework NSW and found to be safe for operation.
49 The conduct of Mr Danalis at the Port Kembla Coal Terminal on 15 and 16 October 2018 was adverse to WGC in that it hindered or prevented the employees working and the use of its cranes to carry out scheduled work for PKCT on 16 October 2018, causing loss of revenue to WGC. The actions were also adverse to the employment of Messrs Paniagua, Windle, and the other seven Freo employees.
The additional evidence
50 The Commissioner tendered the 2020 annual return for the national office of the Union. He also tendered what I take to be the most recent financial reports for the National Office of the Union, the National Construction and General Division of the Union and the NSW Divisional Branch to demonstrate the Union’s financial position.
51 The only party to offer any evidence was Mr Danalis. He affirmed an affidavit on 17 March 2021. Mr Danalis was not required for cross-examination. I accept his evidence.
52 Mr Danalis deposed that he was formerly an organiser for the Union but left its employ in about September 2019 and is now employed by the Health Services Union as an industrial officer.
53 He said that he did not admit all the allegations in the original statement of claim but he instructed his solicitors to make admissions and file an amended defence as soon as the amended originating application and statement of claim were filed.
54 He admitted that his conduct contravened s 54 of the BCIIP Act and he apologised for it. He provided the following explanation (without alteration):
That conduct happened whilst CFMEU members working at WGC Cranes were taking lawful industrial action and I wanted to support them. At the Ross Transport Yard and the Port Kembla Coal terminal, I was concerned to stop “WGC Cranes” engaging strikebreaking workers from another company “Freo Cranes” owned by the same parent company undermine the WGC employees’ industrial action.
At the Ross Transport Yard, I got involved in a heated argument with John Williams.
I regret becoming heated towards Mr Williams. Mr Williams had been placed in a difficult situation by his employer by being asked to break a strike, and I should have been prepared for the possibility of an argument.
I immediately regretted the exchange with Mr Williams, and if I had my time over I would have removed myself from the discussion.
At the PKCT, on 15 and 16 October 2018 I raised a number of safety issues. I admit that one of the reasons for my attendance at the site was in order to put pressure on WGC Cranes. Regardless of this, there were some genuine safety issues which WGC needed to deal with.
I accept that when Mr Paniagua said “who are you looking for?”, I replied “your mum”. I was just being immature and impertinent. I was not talking specifically about Mr Paniagua’s mother, and I had no idea if she was deceased. I did not know Mr Paniagua personally, and had only met him the previous day at the PKCT.
55 Mr Danalis went on to say that in 2018 he decided he no longer wanted to work as a union organiser, “largely because [he] did not enjoy or wish to continue working in the industrial relations environment of the construction industry”. He applied for work elsewhere, enrolled in the College of Law to complete his Graduate Diploma of Legal Practice, and in 2019 he undertook work experience with a firm of solicitors. He said he has no intention of returning to work for the Union. Having recently completed his legal studies, he intends to apply for admission as a solicitor later this year. He added that he had recently become a father for the first time and wants to “move on” from his time at the Union. Having left the building and construction industry and having decided to pursue a career in a very different type of workplace, he believes he is unlikely to contravene the BCIIP Act again. He expressed regret for his actions in October 2018. He concluded his affidavit with the following reflections:
I have spent much time considering my own responses and behaviour during October 2018 and why I did what I did. With the benefit of hindsight I believe if I were ever to find myself in a similar confrontational situation that I am now much more mature, wiser and able to respond in an appropriate and acceptable way to the pressures of such a situation.
The relevant statutory provisions
The BCIIP Act contraventions
56 Section 54 of the BCIIP Act relevantly provides that:
(1) A person must not:
(a) organise or take, or threaten to organise or take, any action; …
with intent to coerce another person, or with intent to apply undue pressure to another person, to agree, or not to agree:
(c) to make, vary or terminate a building enterprise agreement; or
(d) to approve any of the things mentioned in paragraph (c).
Note 1: See also Division 2 (reason for action and coercion).
Note 2: Grade A civil penalty.
57 If, in an application in relation to a civil remedy provision in Ch 6, Pt 2 of the Act (which includes s 54), it is alleged that a person took action for a particular reason or with a particular intent and taking that action for that reason or with that intent would constitute a contravention of the provision, then it is presumed in proceedings arising from the application that the action was taken for that reason or with that intent unless the person proves otherwise: BCIIP Act, s 57.
58 The liability of bodies corporate is covered by s 94 of the Act. It is in the following terms:
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
59 As the Union is, and was at all material times, an association of employees registered as an organisation under s 26 of the Registered Organisations Act, it is a body corporate capable of being sued in its registered name: see Registered Organisations Act, s 27.
60 Section 95 of the BCIIP Act relevantly provides that, for the purposes of that Act, action taken by an officer of a building association acting in that capacity is taken to be action of the building association. “Officer” is defined in s 5 to mean a person who holds an office in, or is an employee of, an organisation or industrial association.
The contravention of the FW Act
61 Section 346 of the FW Act relevantly provides that:
A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
Note: This section is a civil remedy provision (see Part 4-1).
(Emphasis added.)
62 “Adverse action” is defined in s 342 of the FW Act. It includes an industrial association taking industrial action against a person (s 342(1) item 7). An “industrial association” is defined in s 12 to include an association of employees that is registered as such under a workplace law. The Registered Organisations Act is a workplace law: FW Act, s 12.
63 A person engages in industrial activity within the meaning of s 347(b) if, amongst other things, the person does not participate in a lawful activity organised or promoted by an industrial association: see s 347(b)(iii).
64 Section 545(1) of the FW Act gives the Court the power to make any order it considers appropriate where it is satisfied that a person has contravened a civil remedy provision. Section 546 expressly confers a power on the Court to impose a pecuniary penalty in addition to any one or more orders under s 545 (see s 546(1) and (5)). Section 546(2) provides that the pecuniary penalty must not exceed, in the case of an individual, the maximum number of penalty units referred to in the relevant item in column 4 of the table in s 539(2) and, in the case of a body corporate, five times the maximum number of those penalty units. The Court may order that the penalty (or part of it) be paid to the Commonwealth, a particular organisation, or a particular person: s 546(3).
65 In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 (Non-Indemnification Case (HC)) a majority of the High Court held that there was implied power under s 546 of the FW Act for a judge to order that a union not indemnify a union official against a pecuniary penalty imposed on that official. The majority’s reasoning process applies equally to s 81(1)(a) of the BCIIP Act: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070; 299 IR 231 at [192]–[205] (Katzmann J). But no such order was sought in the present case.
The contraventions
66 The Union and Mr Gutierrez admitted that on 15 October 2018 at the Ross Transport Yard Mr Gutierrez contravened s 54(1) of the BCIIP Act by taking action against Mr Sergi and WGC with intent to apply undue pressure to WGC to make or approve a building enterprise agreement on terms proposed by the Union.
67 The Union and Mr Danalis admitted that on the same date at the same place Mr Danalis contravened s 54(1) of the BCIIP Act by taking action against Mr Sergi and WGC with intent to apply undue pressure to WGC to make or approve a building enterprise agreement on terms proposed by the Union. The Union and Mr Danalis have also admitted that, on 15 and 16 October 2018, at the Port Kembla Coal Terminal, Mr Danalis contravened s 54(1) of the BCIIP Act by taking action against both PKCT and WGC with intent to apply undue pressure to WGC to make or approve a building enterprise agreement on terms proposed by the Union.
68 The Union admitted that by reason of the conduct of Mr Gutierrez and Mr Danalis it also contravened s 54(1) of the BCIIP Act.
69 Finally, the Union admitted that on 15 October 2018 it contravened s 346 of the FW Act by taking adverse action against Mr Williams in the form of making a Facebook post containing a photograph of Mr Williams and that it did so because he engaged in industrial activity within the meaning of s 347(b) of the FW Act in that he was not participating in industrial action in which WGC employees were engaged, being a lawful activity organised and promoted by the Union.
The issues
70 The parties remain at odds about the following questions:
(1) the number of contraventions committed by the Union and therefore the form of the declarations;
(2) whether the contraventions should be treated as a single course of conduct; and
(3) the appropriate amount of the pecuniary penalties.
71 It is to those questions that I now turn.
How many contraventions were committed by the Union?
72 At [94] of his submissions the Commissioner stated:
In respect of the CFMMEU, the parties agree that by operation of s 94 of the BCIIP Act, the CFMMEU is taken to have engaged in the conduct (with the relevant state of mind) comprising the contraventions of each of Mr Danalis and Mr Gutierrez. The ABCC contends - and the Respondents agree - that the consequence of that attribution is that the CFMMEU has:
(a) twice contravened s 54(1) of the BCIIP Act on 15 October 2018 with respect to the conduct of each of Mr Gutierrez and Mr Danalis at Ross Transport; and
(b) contravened s 54(1) of the BCIIP Act once with respect to Mr Danalis’ conduct on 15 and 16 October 2018 at PKCT.
73 At [95] of those submissions the Commissioner also stated that the Union had “breached s 346 of the FW Act once on 15 October 2018 in its own right (by the making of the Facebook post)”.
74 In a proposed minute of order, annexed to his written submissions, the Commissioner sought declarations in the following terms:
THE COURT DECLARES THAT:
A. On 15 October 2018 at Five Islands Road, Port Kembla in the State of New South Wales (the Ross Transport Yard) the Second Respondent, Simon Gutierrez (Gutierrez), contravened subsection 54(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCIIP Act) by taking action against Marc Sergi and WGC Crane Group Pty Ltd (t/as WGC Cranes) (WGC Cranes) with an intent to apply undue pressure to WGC Cranes to make or approve a building enterprise agreement on terms proposed by the First Respondent (the Gutierrez Ross Transport Contravention).
B. On 15 October 2018 at the Ross Transport Yard the Third Respondent, Gerasimos Danalis (Danalis), contravened subsection 54(1) of the BCIIP Act by taking action against Marc Sergi and WGC Cranes with an intent to apply undue pressure to WGC Cranes to make or approve a building enterprise agreement on terms proposed by the First Respondent (the Danalis Ross Transport Contravention).
C. On 15 and 16 October 2018 at the Port Kembla Coal Terminal at Port Kembla Road, Wollongong in the State of New South Wales (PKCT), the Third Respondent, Danalis, contravened subsection 54(1) of the BCIIP Act by taking action against Port Kembla Coal Terminal and WGC Cranes with an intent to apply undue pressure to WGC Cranes to make or approve a building enterprise agreement on terms proposed by the First Respondent (Danalis PKCT Contravention).
D. Pursuant to section 94 and 95 of the BCIIP Act, the Construction, Forestry, Maritime, Mining And Energy Union (CFMMEU) contravened section 54 of the BCIIP Act by reason of the Gutierrez Ross Transport Contravention.
E. Pursuant to section 94 and 95 of the BCIIP Act, the CFMMEU contravened section 54 of the BCIIP Act by reason of the Danalis Ross Transport Contravention.
F. Pursuant to section 94 and 95 of the BCIIP Act, the CFMMEU contravened section 54 of the BCIIP Act by reason of the Danalis PKCT Contravention.
G. …[O]n 15 October 2018 the CFMMEU once contravened section 346 of the Fair Work Act 2009 (FW Act) by taking adverse action against John Williams in the form of making a Facebook post containing photographs of John Williams because he engaged in industrial activity within the meaning of subsection 347(b) of the FW Act, that is, he was not participating in industrial action being engaged in by WGC Cranes employees, being a lawful activity organised and promoted by the CFMMEU (CFMMEU Facebook Contravention).
75 There is no dispute about the form of declaration G. But the Union submitted that there was no agreement to the form or substance of declarations D, E and F. The Union disagreed with the representation that it had agreed it had contravened the BCIIP Act three times. It submitted that the Amended Originating Application (AOA) to which it agreed seeks a single declaration “in relation to the contravention by the Union of s 54 of the BCIIP Act”. In any case, the Union argued, the number of contraventions by the Union was a question for the Court.
76 It is true that the AOA seeks a single declaration, but in that respect it is not substantially different from the form of the declaration in the proposed minute. The declarations sought in the AOA relating to the Union’s contraventions are in the following terms:
CFMMEU contraventions
45 Declaration that on 15 October 2018 the CFMMEU once contravened section 346 of the FW Act by taking adverse action against John Williams in the form of making a Facebook post containing photographs of John Williams because he engaged in industrial activity within the meaning of subsection 347(b) of the FW Act, that is, he was not participating in industrial action being engaged in by WGC Cranes employees, being a lawful activity organised and promoted by the CFMMEU.
46 Declaration that in respect of declarations 1, 2 and 7 above, the conduct, actions and state of mind of each of the Second and Third Respondents was by reason of sections 94(1)(a) and 95(1)(b) of the BCIIP Act, the conduct, actions and state of mind of the First Respondent, the CFMMEU.
47 In respect of each contravention in paragraphs 1, 2 and 7 above, a declaration that the CFMMEU contravened the relevant civil remedy provision by application of sections 94 and 95 of the BCIIP Act to those contraventions of the BCIIP Act.
77 Paragraphs 1, 2 and 7 read:
1 Declaration that on 15 October 2018 at Five Islands Road, Port Kembla in the State of New South Wales (the Ross Transport Yard) the Second Respondent, Simon Gutierrez, contravened subsection 54(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCIIP Act) by taking action against Marc Sergi and WGC Crane Group Pty Ltd (t/as WGC Cranes) (WGC Cranes) with an intent to apply undue pressure to WGC Cranes to make or approve a building enterprise agreement on terms proposed by the First Respondent.
2 Declaration that on 15 October 2018 at the Ross Transport Yard the Third Respondent, Gerasimos Danalis, contravened subsection 54(1) of the BCIIP Act by taking action against Marc Sergi and WGC Cranes with an intent to apply undue pressure to WGC Cranes to make or approve a building enterprise agreement on terms proposed by the First Respondent.
7 Declaration that on 15 and 16 October 2018 at the Port Kembla Coal Terminal at Port Kembla Road, Wollongong in the State of New South Wales (PKCT) the Third Respondent, Gerasimos Danalis, contravened subsection 54(1) of the BCIIP Act by taking action against Port Kembla Coal Terminal and WGC Cranes with an intent to apply undue pressure to WGC Cranes to make or approve a building enterprise agreement on terms proposed by the First Respondent.
78 It seems tolerably clear that, by agreeing to the declarations in the AOA, the Union was agreeing to one contravention of the FW Act and three contraventions of the BCIIP Act.
79 Furthermore, the agreed facts support a finding to this effect.
80 The Union submitted that ss 94 and 95 of the BCIIP Act do not attribute liability to industrial associations for contraventions of the BCIIP Act. Rather, they attribute to the associations the conduct and states of mind of its officers, agents and members. The Union is correct in this respect. I considered the matter at length in The Constitution Place Case at [70]–[113]. Since then, the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; 384 ALR 668; 300 IR 383 endorsed this approach to the analogous sections of the FW Act. For this reason, the form of declarations included in paras D, E and F of the proposed minute of order annexed to the Commissioner’s submissions is inappropriate.
81 The Bay Street Appeal was concerned with an allegation that the CFMEU had taken adverse action by organising industrial action against a building contractor, Tarastar Pty Ltd, trading as BPM Built (BPM). The industrial action consisted of a stoppage of work at one building site on one day by workers employed by another company, Wagstaff Piling Pty Ltd. The Commissioner alleged that two union officials, Mr Long and Mr Benstead, each contravened ss 346 and 348 of the FW Act by organising the stoppage and the CFMEU had committed two contraventions of each of those sections, not one.
82 The primary judge, Bromberg J had found that the CFMEU had contravened the FW Act once as a result of the conduct of two union officials: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) (2018) 260 FCR 564 at [113]. This finding was challenged by the Commissioner in his cross-appeal. The cross-appeal was dismissed. The Full Court was divided over the outcome of the appeal but not the cross-appeal. White J, with whom on this question Allsop CJ and Flick J agreed (at [1] and [46] respectively), said at [257]:
It has been held in several decisions that s 793 does not attribute liability to body corporates for contraventions of Pt 3‑1 or of the FW Act more generally: [Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338] at [48]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra’s Edge Case) [2016] FCA 772 at [19] (Jessup J); Australian Building and Construction Commissioner v Pauls [2017] FCA 843 at [48] (Rangiah J); and Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934, (2018) 280 IR 173 at [30] (Jagot J). The Commissioner did not challenge the correctness of that understanding of s 793, and it is consistent with the view of s 84(2) of the former Trade Practices Act 1974 (Cth) stated by Toohey J in Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 at 739; (1983) 76 FLR 455 at 474‑5. There is no reason to distinguish s 363 from s 793 in this respect. Accordingly, ss 363 and 793 can be better understood as facilitating proof of the conduct of an industrial association or of a body corporate when that is necessary under Pt 3‑1 (in the case of s 363) or under the FW Act more generally (in the case of s 793): see McDermott (No 2) at [53].
83 His Honour went on to refer to the Commissioner’s pleading at [258] before setting out his conclusions on the question raised by the cross-appeal at [259]–[260]:
There was only one work stoppage. Moreover, on the facts pleaded by the Commissioner and on the Judge’s findings, there was only one organisation of it, albeit undertaken by two human actors: cf Robinson at [53]; The Yarra’s Edge Case at [19]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070 at [70]‑[113]. The circumstances considered by Besanko J in Cartledge on which the Commissioner relied are distinguishable, because that was a case of multiple unlawful acts.
In establishing the contraventions of ss 346 and 348 of the FW Act which he alleged, the Commissioner could invoke s 363 or s 793 in order to attribute to the CFMMEU the conduct and states of mind of Mr Long and Mr Benstead (or either of them). The attribution of the conduct and state of mind of only one of Mr Long or Mr Benstead would have been sufficient, in the circumstances, to establish the CFMMEU’s contravention. But the fact that the Commissioner could also rely in proof of his allegation on the conduct of the second individual does not have the consequence that there was a second contravention by the CFMMEU.
84 In the present case, the Union submitted that it committed only one contravention of s 54 of the BCIIP Act. It reasoned as follows:
The present case is one where two officers have engaged in related contravening conduct at the same site and one of those officials has engaged in similar conduct at another site. It would be artificial to regard the conduct of the Union as having amounted to a separate action in respect of the conduct of each of the individuals and the conduct at each of the sites. As part of the Union campaign, the second and third respondents placed undue pressure on WGC in pursuit of that campaign. In particular, the conduct [of] the second and third respondents was implementing a Union strategy of preventing persons doing the work that would normally have been done by the employees of WGC who were taking lawful protected industrial action.
85 This analysis is not persuasive.
86 First, in contrast to the pleadings in Robinson, The Bay Street Case, The Yarra’s Edge Case and the Constitution Place Case, the Commissioner’s pleading does not allege that the Union engaged in one contravention of the BCIIP Act. To the contrary, the Commissioner pleaded that the Union contravened the BCIIP Act three times.
87 Second, the Union admitted that it contravened the BCIIP Act three times and no application was made, let alone granted, for leave to withdraw its admissions.
88 In the amended statement of claim, after reciting the allegations relating to Mr Gutierrez’s conduct, the Commissioner pleaded:
46 By reason of paragraphs 94(1)(a) and 95(1)(b) of the BCIIP Act and paragraphs 3 and 34 and 36 above, the conduct and actions of Gutierrez are taken to be the conduct and actions of the CFMMEU.
47 To the extent necessary, by reason of subsections 94(2) and 95(3) of the BCIIP Act, the state of mind of Gutierrez when engaged in the conduct and actions pleaded above is to be taken as the state of mind of the CFMMEU.
48 The CFMMEU therefore contravened subsection 54(1) of the BCIIP Act.
89 Each of these allegations was admitted in the Union’s amended defence.
90 After reciting the allegations relating to Mr Danalis’s conduct at the Ross Transport Yard, the Commissioner pleaded:
49 By engaging in the conduct referred to in paragraphs 34 and 36 Danalis took action against Sergi and WGC:
a. with an intention to apply undue pressure to WGC to agree to make or approve a building enterprise agreement, namely the CFMMEU’s Proposed Agreement or a building enterprise agreement or terms proposed or agreeable to the CFMMEU; and
Particulars
The intention is to be inferred from the matters alleged in paragraphs 34 and 36 and paragraphs 13, 14 and 18 of the Amended Statement of Claim.
…
c. that was unlawful, illegitimate or unconscionable.
Particulars
The actions of Danalis induced or procured Williams and Aragon to breach their contracts with WGC and Freo respectively, and induced or procured WGC to breach its contract with Abergeldie and were liable to an action in nuisance, conversion or detinue in relation to the WGC cranes. The actions were illegitimate in that they were adverse to WGC in that it prevented the employees working and the use of its cranes to carry out scheduled work for clients on 15 October 2018, causing loss of revenue to WGC, and the actions were adverse to the employment of Williams and Aragon. The actions were disproportionate to any legitimate interest the actions supported, and was action that neither Danalis nor the CFMMEU had any entitlement to engage in.
50 By reason of the matters pleaded in paragraphs 34, 35, 36, 37 and 49, Danalis contravened section 54 of the BCIIP Act.
59 By reason of paragraphs 94(1)(a) and 95(1)(b) of the BCIIP Act and paragraphs 4 and 34 and 36 above, the conduct and actions of Danalis are to be taken to be the conduct and actions of the CFMMEU.
60 To the extent necessary, by reason of subsections 94(2) and 95(3) of the BCIIP Act the state of mind of Danalis when engaged in the conduct and actions pleaded above is to be taken as the state of mind of the CFMMEU.
61 The CFMMEU therefore contravened subsection 54(1) of the BCIIP Act.
91 Each of these allegations was admitted in the Union’s amended defence.
92 After reciting the allegations relating to Mr Danalis’s conduct at the Port Kembla Coal Terminal on 15 and 16 October 2018, the Commissioner pleaded:
119 By engaging in the conduct referred to in paragraphs 63 and 116 and 117 Danalis took action against WGC and PKCT:
a. with an intention to apply undue pressure to WGC to agree to make or approve a building enterprise agreement, namely the CFMMEU’s Proposed Agreement or a building enterprise agreement on terms proposed by or agreeable to the CFMMEU; and
Particulars
The intention is to be inferred from the matters alleged in paragraphs 63 and 116 and 117 and paragraphs 13, 14 and 18 of the Amended Statement of Claim.
…
c. that was unlawful, illegitimate or unconscionable.
Particulars
The actions of Danalis were illegitimate in that they were adverse to WGC in that it hindered or prevented the employees working and the use of its cranes to carry out scheduled work for PKCT on 16 October 2018, causing loss of revenue to WGC. The actions were disproportionate to any legitimate interest the actions supported, and was action that neither Danalis nor the CFMMEU had any entitlement to engage in.
120 By reason of the matters pleaded in paragraphs 63 and 116 to 119, Danalis contravened section 54 of the BCIIP Act.
129 By reason of paragraphs 94(1)(a) and 95(1)(b) of the BCIIP Act and paragraphs 4, 63 and 116 and 117 above, the conduct and actions of Danalis are to be taken to be the conduct and actions of the CFMMEU.
130 To the extent necessary, by reason of subsection 94(2) and 95(3) of the BCIIP Act, the state of mind of Danalis when engaged in the conduct and actions pleaded above is to be taken as the state of mind of the CFMMEU.
131 The CFMMEU therefore contravened section 54 of the BCIIP Act.
93 Once again, the Union admitted each of these allegations in its amended defence.
94 In these circumstances, it is not open to the Union to argue that it contravened the BCIIP Act only once.
95 Third, this case bears no resemblance to The Bay Street Case or, for that matter, The Constitution Place Case. Rather, it more closely resembles that with which Besanko J was dealing in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 10 (Cartledge), which White J distinguished in The Bay Street Appeal. In Cartledge Besanko J said at [37]:
There were two threats in this case, one by Mr Cartledge and the other by Mr McDermott. No doubt they were closely related, as I have indicated, but they remain two threats. I accept that s 363(1) of the FW Act does not in terms attribute the contraventions to the CFMEU and that it is the actions of Mr Cartledge and Mr McDermott which are attributed to the CFMEU. Nevertheless, those actions involved two threats. Once that conclusion is reached, it is not clear to me by what process of reasoning or principle a court would be entitled to say that for attribution purposes there was one contravention rather than two, or by reference to what principle a court would be able to distinguish between cases involving one contravention as distinct from two contraventions. It might be different if the words of the provision contravened made it clear that there could be only one contravention. Otherwise, in my opinion, the course of conduct or single course of conduct considerations are reflected in one of the other three approaches where applicable. I would also note it may be that the presence of s 557 of the FW Act and the limitations on its scope in s 557(2) of the FW Act bears upon the problem in the case of civil remedy provisions not referred to in s 557(2) of the FW Act. I do not think the first approach can be taken in the case of s 343(1) of the FW Act.
96 The actions of the Union officials which is attributed to the Union were not collective acts, albeit that they had a common purpose. At the Ross Transport Yard, while both of Mr Gutierrez and Mr Danalis took action against Mr Sergi and WGC with intent to apply undue pressure to WGC, save in one respect the action each took was different. Mr Gutierrez abused Mr Williams. Mr Danalis admitted in his affidavit that he was involved in a heated argument with Mr Williams. Without more, however, it is difficult to know what to make of this. The agreed facts disclose that both he and Mr Gutierrez had words with Mr Dorrian designed to encourage or shame him into supporting the Union’s position. But Mr Danalis alone used his vehicle to prevent the use of the cranes. The allegations concerning the Port Kembla Coal Terminal were made against Mr Danalis alone. I am satisfied that the effect of attributing to the Union the conduct of Messrs Gutierrez and Danalis is that the Union contravened the BCIIP Act twice on 15 October 2018 at the Ross Transport Yard and that the Union additionally contravened the BCIIP Act on 15 and 16 October 2018 and I so find.
97 In effect, the Union’s argument was that the conduct of the union officials was part of the one course of conduct. That is the next question.
Should the contraventions be treated as a single course of conduct?
98 The Union submitted that there was a factual relationship between the conduct of Mr Gutierrez and Mr Danalis at the Ross Transport Yard in that it occurred at the same worksite, during the same time period, and was directed towards the same people. It argued that the conduct was also legally related as it contravened the same provision of the BCIIP Act. Further, the Union submitted that all of its conduct was part of a campaign to place undue pressure on WGC and involved a coordinated strategy of preventing the performance of work that would normally have been done by the employees of WGC.
99 Similarly, Messrs Guiterrez and Danalis submitted that their conduct was in pursuit of an industrial campaign against WGC, “particularly directed at attempting to prevent steps being taken to ameliorate the effect of the protected industrial action” and that s 84 of the BCIIP Act was engaged. They contended that “parsing … that behaviour into its subsidiary parts” would be artificial and lead to “manifestly excessive penalties” if the “subsidiary parts” were separately penalised. In the alternative, they contended that the contraventions were clearly interrelated in the sense discussed in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1;194 IR 461.
100 In contrast, the Commissioner submitted that, although the actions of Mr Danalis and Mr Gutierrez were part of a single industrial campaign, they were not part of the same course of conduct. The Commissioner relied on the principles enunciated in Parker v Australian Building and Construction Commissioner (2019) 270 FCR 39 at [268] and [272]–[274] (Besanko and Bromwich JJ).
101 The Commissioner accepted that the contraventions of Mr Danalis and Mr Gutierrez were of the same or a similar character but submitted that the actions of each officer were distinct and motivated by different reasons. In particular, he contended that the acts of Mr Danalis on 15 and 16 October, which involved sham safety concerns, were distinct from, and pleaded and particularised differently to, the contraventions by both Mr Danalis and Mr Gutierrez on 15 October, which involved intimidatory conduct. The Commissioner contrasted these contraventions with those in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1942, which were held to be part of the same course of conduct given they occurred on the same dates and involved the same parties and places.
102 There is no reason in principle why actions of union officials on consecutive days could not properly be regarded as one course of conduct. Nor, it seems to me, does it necessarily matter that Mr Danalis’s actions at the Port Kembla Coal Terminal differed in character from one day to the next. Indeed, by pleading that Mr Danalis engaged in one contravention at the Port Kembla Coal Terminal over the two consecutive days the Commissioner apparently accepted as much.
103 In Cahill at [39] Middleton and Gordon JJ made the following observations about the operation of the principle at common law:
The [course of conduct] principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is “the same criminality” and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.
(Emphasis in original.)
104 But the starting point for the consideration of this question must be the statute.
105 If conduct constitutes a contravention of two or more civil remedy provisions, s 83 of the BCIIP Act allows proceedings to be brought against a person in relation to the contravention of any one or more of those provisions (s 83(1)) but stipulates that the person is not liable to more than one pecuniary penalty in relation to “the same conduct” (s 83(2)).
106 Section 84(1) of the BCIIP Act provides that where there have been multiple contraventions of a civil remedy provision and “the contraventions are founded on the same facts or if the contraventions form, or are part of, a series of contraventions of the same or a similar character”, the Court may make a single penalty order. If such an order is made, however, s 84(2) stipulates that any pecuniary penalty the Court imposes must not exceed the sum of the maximum penalties that could be ordered if a separate pecuniary penalty were ordered for each contravention.
107 In this respect the BCIIP Act differs from the FW Act which relevantly provides in s 557(1) that two or more contraventions of certain civil remedy provisions of that Act (listed in s 557(2)) “are taken to constitute a single contravention if … the contraventions are committed by the same person; and … arose out of a course of conduct by the person”. It has been held that s 557 does not oust the common law: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 (The Perth Airport Case) at [88] (Dowsett and Rares JJ); Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchinson Ports Appeal) [2019] FCAFC 69 at [89]-[95] (Ross J). In Rocky Holdings Pty Limited v Fair Work Ombudsman (2014) 221 FCR 153 at [18] the Full Court (North, Flick and Jagot JJ) said that “[t]he object and purpose of provisions such as s 557 and its predecessors is to ensure that an ‘offender is not punished twice for what is essentially the same criminality’”.
108 There is little authority on the scope of s 84(1).
109 The Explanatory Memorandum to the Building and Construction Industry (Improving Productivity) Bill 2013 provides no assistance with respect to s 83 but said this in relation to what became s 84 (in para 268):
Clause 84 clarifies that a relevant court may issue a single penalty for multiple contraventions of the civil penalty provisions of the Bill and is not required to issue separate penalty instruments. This provision is intended to minimise court administration and consolidate legal proceedings.
110 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (The Botany Cranes Case) [2021] FCA 363, Rares J observed at [57] that in its use of the expression “founded on the same facts”, s 84 reflects the common law and common sense. The Botany Cranes Case involved an unlawful picket. In that context his Honour went on to say (also at [57]):
It must be directed to a situation where, for example, several individuals in contravention of s 47(1) engage in a picket and their conduct creating each contravention is deemed to be that of a body corporate, or the conduct is repeated in a picket that occurs at the same place on consecutive days in the same way over the same issue, as in Parker 270 FCR 39.
111 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105 Rangiah J held (at [45]) that s 84 applied and that it was therefore unnecessary to decide whether the common law course of conduct principle had any application. His Honour found (at [46]) that the conduct of a union official in organising unlawful industrial action by a number of employees of a construction company on two consecutive days formed “a series of contraventions of a similar character” because the conduct was directed against the same entity (the construction company) “with the single object of coercing that entity into entering an enterprise agreement with the Union”. The contravening conduct in that case consisted of the imposition of bans on the performance and acceptance of building work on each of the two days. It is evident that that conduct of the union organiser was of the same character.
112 It is possible that s 83(2) was intended to pick up the common law principle. Having regard to what was said in the Explanatory Memorandum, I doubt very much whether that was the purpose of s 84. Certainly, s 84(2) does not explicitly provide for a reduction in the sum total of the penalties in the circumstances in which it entitles a court to impose a single penalty. Regardless, I would not read the Act in such a way as to exclude the operation of the common law principle. As Dowsett and Rares JJ concluded with respect to s 557 of the FW Act in The Perth Airport Case, I would conclude that ss 83 and 84 of the BCIIP Act were not intended to cover the field and that those provisions do not exclude the common law principle.
113 So what of the position in the present case?
114 There is no doubt that the objects of Mr Danalis and Mr Gutierrez were the same. Moreover, when in each other’s company at the Ross Transport Yard on 15 October the abusive and intimidatory conduct of Mr Gutierrez was of the same character as Mr Danalis’s conduct at the Port Kembla Coal Terminal later that day. But certain aspects of Mr Danalis’s conduct on 15 October at the Ross Transport Yard (using his car to block the use of the cranes) and 16 October at the Port Kembla Coal Terminal (interfering with the use of a crane and invoking sham safety issues) were different in character from the conduct of Mr Gutierrez. For this reason it would not be right to impose a single penalty on either Mr Danalis or the Union.
115 Further, the contravention involving the Facebook post by the Union should be treated as part of the same course of conduct as the conduct of Messrs Danalis and Gutierrez which is attributed to the Union. It is not “the same criminality”.
116 The matters upon which the respondents relied, however, will need to be considered with respect to Mr Danalis and the Union in the application of the totality principle: see Parker at [302]–[305] (Besanko and Bromwich JJ). I will come to that in due course.
In what amounts should the penalties be paid?
117 Section 81 of the BCIIP Act relevantly provides that:
(1) A relevant court, on application by an authorised applicant, may make one or more of the following orders relating to a person (the defendant) who has contravened a civil remedy provision:
(a) an order imposing a pecuniary penalty on the defendant;
(b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention; and
(c) any other order that the court considers appropriate.
…
(2) The maximum pecuniary penalty is:
(a) for a Grade A civil remedy provision—1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units; and
(b) for a Grade B civil remedy provision—100 penalty units if the defendant is a body corporate and otherwise 20 penalty units.
…
(5) A pecuniary penalty under paragraph (1)(a) is payable to the Commonwealth, or to some other person if the court so directs. It may be recovered as a debt.
(6) In determining a pecuniary penalty under paragraph (1)(a), the court must take into account all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered because of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.
…
118 The Commissioner is an “authorised applicant” within the meaning of s 5 of the BCIIP Act.
The principles
119 It is trite that, like the criminal sentencing process, the process of fixing a civil penalty is not a mathematical exercise to be determined by reference to the maximum penalty for a contravention and adjusting it to reflect aggravating and mitigating factors. Civil penalties, like sentences for criminal offences, are fixed by a process of instinctive synthesis. In other words, they are determined after taking “due account” of all the relevant factors, which may pull in opposite directions. See, for example, Wong v The Queen (2001) 207 CLR 584 at [74]-[76] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen (2005) 228 CLR 357 at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [51] (McHugh J).
120 The primary, if not the only, purpose of a civil penalty is to promote the public interest in compliance with the law. This is achieved by imposing penalties that are sufficiently high to deter the wrongdoer from engaging in similar conduct in the future (specific deterrence) and to deter others who might be tempted to contravene (general deterrence). The penalty for each contravention or course of conduct is to be no more and no less than is necessary for that purpose. See, for example, Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (The Agreed Penalties Case) at [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). At the same time, however, the penalty or penalties must be proportionate to the contravening conduct: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 at [22] (Allsop CJ, White and O’Callaghan JJ); Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 384 ALR 75; 299 IR 404 (Allsop CJ, Besanko, White, Wigney and Bromwich JJ). In Pattinson at [180] Allsop CJ, White and Wigney JJ observed that:
[T]he notion of proportionality of the penal response is central to the content of the statutory power to impose the penalty. That proportional response is not blind to wilful recidivism, to asserted impunity from obedience to the law, or to any other aspect of intentional disobedience to the will of Parliament. Such matters form a principled part of the assessment of the seriousness of the contravention and thus the evaluation of the appropriate penalty … What is not permitted in the name of deterrence is to untether the penal response from the nature and character of the instant contravention such that the penalty imposed can be seen to be undifferentiated between the grades of conduct assessed and characterised on a principled basis.
121 A serial contravener is not entitled to leniency and the instant contraventions should be viewed through the “prism” of past contraventions: Parker at [341] (Besanko and Bromwich JJ). A history of contravening conduct may be relevant to the seriousness of the instant contraventions: Pattinson at [177]–[180] (Allsop CJ, White and Wigney JJ). Thus, where past contraventions show “wilfulness”, they “can be taken into account in characterising the seriousness of the contravention”: Pattinson at [179] (Allsop CJ, White and Wigney JJ); at [227](5), [230]–[231] (Besanko and Bromwich JJ). The maximum penalty, however, is reserved for contraventions of the worst kind: QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150; 204 IR 142 at [55] and [58] (Keane CJ and Marshall J).
122 Further, where multiple contraventions are being penalised, it is necessary to ensure that the aggregate penalty is “not unjust or out of proportion to the circumstances of the case”: Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at [42] (Stone and Buchanan JJ). This is commonly referred to as the “totality principle”. The principle operates as a check at the end of the process: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53 (Goldberg J). It involves taking a last look at the total sum of the penalties to see whether it looks wrong and requires adjustment so as to ensure that the aggregate penalty does not exceed what is just and proper: Mill v The Queen (1988) 166 CLR 59 at 63.
123 In determining appropriate penalties in the present case, the following considerations are material:
the maximum penalties;
the need for deterrence, both specific and general;
the nature and extent of the contraventions;
the seriousness of the contraventions;
the loss and damage they caused;
the extent, if any, of contrition on the respondents’ part;
the extent to which the parties cooperated with the regulator;
any previous contraventions; and
in the case of the Union, its size and culture of compliance or lack thereof; and
the need for deterrence, both specific and general.
124 A number of these factors are inter-related. For example, the seriousness of the contraventions is affected by such matters as the loss and damage they cause and the extent of any previous contraventions. And the need for deterrence is greater in the case of a person who has a history of contravening conduct. Further, the extent of the Union’s resources and its culture bear upon the question of how substantial a penalty should be imposed since any civil penalty should be fixed, if possible, with a view to ensuring that “the cost of courting a risk of contravention … cannot be regarded as [an] acceptable cost of doing business”: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 at [68] (Keane CJ, Finn and Gilmour JJ), approved by the High Court in Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [64] and [66] (French CJ, Crennan, Bell and Keane JJ), [72] (Gageler J); Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 at [52] (Buchanan J); The Perth Airport Case at [100]–[102] (Dowsett and Rares JJ).
The maximum penalties
125 The maximum penalty fixed by the Parliament is an important yardstick for the determination of the appropriate penalty in any case, to be taken and balanced with all the other relevant factors: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [154]–[156]; Pattinson at [105] (Allsop CJ, White and Wigney JJ).
126 At the time the contravening conduct occurred, the value of a penalty unit was $210: Crimes Act 1914 (Cth), s 4AA(1); Crimes Amendment (Penalty Unit) Act 2017 (Cth), Sch 1 item 1. As s 54(1) of the BCIIP Act is a “Grade A civil penalty provision”, and such provisions attract a maximum pecuniary penalty of 1,000 penalty units for a body corporate and 200 penalty units otherwise under s 81(2), it follows that the maximum pecuniary penalty for a contravention of s 54(1) by the Union is $210,000 and by each of Mr Danalis and Mr Gutierrez is $42,000.
127 The maximum penalty that may be imposed on the Union for its contravention of the FW Act is 300 penalty units (see FW Act, ss 539(1) item 11, 546(2)(b)) or $63,000.
The nature and extent of the contraventions
128 Mr Gutierrez contravened the BCIIP Act once, by his conduct at the Ross Transport Yard on 15 October 2018. That conduct involved the following activities:
abusing and arguing with Mr Williams and standing close to him in an intimidatory manner during the confrontation;
then filming or photographing him using his mobile phone held close to Mr Williams’ face;
threatening to sue Mr Williams for assaulting him when Mr Williams attempted to brush the phone aside; and
remonstrating with Mr Dorrian for working during a strike, urging him not to be “a dog” and “a scab”, and insisting that he go home.
129 Mr Danalis admitted to two contraventions, the first relating to his conduct on 15 October 2018 at the Ross Transport Yard and the second to his conduct on 15 and 16 October 2018 at the Port Kembla Coal Terminal.
130 At the Ross Transport Yard Mr Danalis parked his car so close to the WGC cranes that they could not be moved. He repeatedly refused to move his car when asked, even after Mr Sergi said he would call the police. He told Mr Dorrian that he need not work there, reminding him that his father was from Wollongong and in the unions. He also engaged in a heated argument with Mr Williams.
131 On the first day at the Port Kembla Coal Terminal, over about four and a half hours, Mr Danalis shouted abuse at two crane drivers; when the WGC Operations Coordinator, Mr Paniagua, tried to intervene, he told him to “fuck off”, and he ignored instructions from the managers of PKCT to leave the restricted area.
132 On the second day, Mr Danalis entered the restricted area without the permission of either WGC or PKCT and without personal protective equipment. He remained on site for about seven and a half hours. While on site Mr Danalis engaged in the following conduct. He activated the emergency stop button on a crane causing it to stop suddenly. When asked by Mr Paniagua why he had activated the emergency stop button, he made false allegations about “safety issues” and persisted in raising shame safety issues during a lengthy inspection of the cranes. He ignored the requests of PKCT to leave the restricted area. He took photographs of the work area, plant and employees with his mobile phone. He provoked Mr Paniagua by making comments about his mother, who had recently died albeit not to his knowledge. And he refused to delete photographs of the crane driver when requested to do so by the manager of PKCT.
133 The behaviour in which Mr Gutierrez and Mr Danalis engaged involved “action that does or attempts to overbear, by the use of bullying or ‘standover’ tactics, its target from acting as he, she or it would otherwise act”: The Botany Cranes Case at [99] (Rares J).
134 The Facebook post pilloried Mr Williams for exercising his right to work. It was not taken down until the morning of 18 October 2018. I accept the Commissioner’s submission that the act of making the post was vengeful and motivated by Mr Williams’ lawful decision not to participate in the industrial action organised by the Union. Its evident purpose was to cause Mr Williams to be ostracised by employees who did. It was a public humiliation, intended to shame him, a modern form of the ancient punishment, popular in the Middle Ages, of placing a miscreant in the village stocks where, unable to protect himself, he was exposed to prolonged abuse and/or assaults. Although the Union did not make the offensive comments that subsequently appeared on its Facebook page, by its conduct it invited or encouraged them. There is therefore force in the Commissioner’s submission that the Union intended to frighten Mr Williams and cause him emotional distress. Whether or not the Union intended to cause him actual harm, it was at least recklessly indifferent to the possibility that its conduct might have that effect.
The seriousness of the contraventions
135 As the Full Court (Dowsett, Greenwood and Wigney JJ) observed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 (The Queensland Infrastructure Case) at [103]:
The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.
136 In the present case, all the contraventions were objectively serious.
Were the contraventions the result of deliberate, covert or reckless conduct?
137 Each of the contraventions was the result of deliberate conduct. On the admitted facts the conduct of the union officials involved abusive threatening and intimidatory conduct towards employees who chose not to participate in the protected industrial conduct, blocking and interfering with the use of cranes, and the raising of sham safety concerns, a practice which the Commissioner aptly described as “[debasing] the currency” of workplace safety. It was also sustained. There is no evidence, however, that either of the officials occupied a senior position with the Union.
138 The contravention involving the Facebook post was both deliberate and premediated, as the Commissioner submitted. It was also sustained, as it was made on 15 October 2018 and not removed until the morning of 18 October 2018. Moreover, it exposed Mr Williams to a risk of mental, if not also physical, harm.
Was the contravening conduct isolated? Does the Union have a culture of compliance?
139 Neither Mr Gutierrez nor Mr Danalis has previously been found to have contravened the BCIIP Act or the FW Act or, for that matter, any industrial or other laws.
140 In contrast, the Union has an appalling record of contravening industrial laws. It has frequently been excoriated in this Court for its recidivism and in Non-Indemnification Case (HC) at [131] the High Court observed that the CFMEU (the Union before the amalgamation in 2018 with the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia) was “well-known to [that] court for its contumacious disregard of court orders”.
141 An unchallenged table of 177 cases was provided by the Commissioner. The table covered the contraventions for which penalties had been imposed on the Union and the CFMEU. All but five of these concerned conduct which predated the instant contraventions. Substantial penalties were imposed in many of these cases. Several of these cases involved conduct of a similar kind to the conduct in which each of the two officials engaged and many featured elements of it. Further, the Union’s overall record is indicative of an indifference to, if not a disdain for, the law. Simply put, the Union behaves as though it is above the law. It adduced no evidence to suggest that it had addressed its record or intended to do so.
142 The Union submitted that the table was of “limited use” because “only” 14 of the cases were committed by officials of the NSW branch of the Construction and General Division of the Union and only one of these was in the last five years. By no stretch of the imagination, however, can the conduct of the NSW branch be regarded as an “uncharacteristic aberration” (Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548; 182 IR 327 at [20] per Jessup J). Nor can it be said that the fact that only one of the 14 cases was in the last five years indicates that the NSW branch, let alone the Union, has changed its ways. The Botany Cranes Case, for example, concerned contraventions by the Union and a number of its senior officials arising out of conduct, which post-dated the contravening conduct with which the present case is concerned, designed to pressure Botany Cranes to enter into an enterprise bargaining agreement. In that case there was an unlawful picket and coercive action in which the senior union officials were directly involved.
143 The Union also submitted that the NSW branch of the Division operated “with relative autonomy under [the Union’s] Rules”. But this submission was not developed and I give it no weight. In The Constitution Place Case at [157]–[160], I referred to a number of authorities in which similar submissions had been made. In that case the Union called evidence about its structure and the practices of the ACT Divisional Branch. To the extent that that evidence bore upon the question of specific deterrence I took it into account. The evidence in that case also indicated that the behaviour of the ACT Divisional Branch was atypical of the Union. In the present case the argument on the subject was sparse and the evidence even sparser.
144 In any event, it is the Union which is a party to this proceeding, not any one of its constituent parts. Moreover, a division or a branch of a federally registered industrial organisation is not a separate legal entity. As Rares J put it in The Botany Cranes Case at [113], “[t]he history of the Union’s contraventions cannot be gainsaid or dissected into its own internal organisations”; “that history evinces an embedded culture, within the Union as a whole, of defying the rule of law as enacted by the Parliament”. In The Constitution Place Case I gave little weight to the considerations concerning the ACT Divisional Branch, observing (at [162]) that “there remains an obvious need for the Union to be deterred from engaging in contravening conduct”. Regrettably, that remains the position.
145 Despite the number of times it has been penalised, the Union has apparently done nothing to address that culture. I respectfully adopt the observations made by Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Cardigan St Case) [2018] FCA 957 at [86] and Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 at [77] that “‘[a]n organisation faced with a litany of contraventions over an extended period of time, which repeatedly incurs not only significant financial penalties but also pointed judicial criticism, would necessarily put in place measures to change the cultural or normative conduct of the contravening behaviours of its officers and employees’ unless such behaviour was condoned by the senior leadership of the organisation”.
The nature and extent of loss and damage caused by the contraventions
146 The contraventions caused inconvenience and some financial loss to WGC Cranes.
147 WGC could not perform works under its contract with Albergeldie at a project at Dapto Bridge because the crane that was meant to be conducting the works was blocked by Mr Danalis’s vehicle, causing WGC a loss of revenue of $4,000.
148 It was an agreed fact that the actions at the Ross Transport Yard were adverse to the employment of Mr Williams and Mr Aragon. It was also an agreed fact that the actions taken at the Port Kembla Coal Terminal site on 15 and 16 October 2018 were adverse to the eight Freo employees who were scheduled to work on that site on those days. What that actually meant, however, was never explored in evidence or submissions. There was no evidence that any of them suffered any financial loss as a result of the conduct constituting the contraventions by Mr Danalis and the Union. The only evidence, set out in the statement of agreed facts, is that WGC incurred extra costs by reason of the delay in the completion of the work caused by the conduct of Mr Danalis. Apart from the loss mentioned in the preceding paragraph, no other loss was quantified. In these circumstances, if there were any further loss, no inference can be drawn that it was extensive: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798 at [68] (Barker J).
149 It is likely that the conduct of all three respondents aroused some fear or at least discomfort in the employees who attended for work at the sites in question during the period of the contraventions and in Mr Williams, in particular, who was treated with contempt by both the officials and the Union. Both Mr Williams and Mr Aragon were so concerned for their safety and reputations that they refused to continue working for the duration of the industrial action. In contrast, to the position in Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440; 243 IR 312 (FWO v MUA), however, another case of vilification of employees as “scabs”, there is no evidence that any of the contraventions caused actual harm to any of the employees.
The size and financial position of the Union
150 As I indicated earlier, the size of a body corporate is relevant to the central question of deterrence, particularly specific deterrence. The Union is a large, prominent and influential national union. The evidence tendered by the Commissioner establishes that it is both cash and asset rich. In these circumstances the penalties will need to be sufficiently high to operate as an effective deterrent (though not so high as to be disproportionate to the gravity of the contraventions). That is particularly so in the case of the Union having regard to its culture of non-compliance with industrial laws which it has steadfastly refrained from addressing.
Cooperation with the regulator
151 While it is true that the admissions were made relatively late, after the proceeding had been listed for trial, it appears that the respondents made admissions shortly after significant amendments were made to the statement of claim.
152 All the respondents are entitled to receive credit for their cooperation with the Commissioner by admitting the contraventions and reaching agreement on the facts. As the Full Court observed in The Queensland Infrastructure Case at [163]:
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.
Contrition
153 There was no evidence of contrition on the part of either Mr Gutierrez or the Union.
154 Mr Danalis, on other hand, gave evidence that suggests he is genuinely contrite. The Commissioner accepted that this was so, as do I. Mr Danalis has left the employ of the Union and forged a new career in the law. Although there is no evidence to indicate whether he remains a Union member, the prospect of him engaging in further contravening conduct appears to be remote.
155 Mr Latham of counsel, who appeared for Mr Danalis and Mr Gutierrez, submitted that Mr Gutierrez does not work for the Union anymore either. While there was no evidence to support the submission, the Commissioner accepted that Mr Gutierrez was no longer working for the Union.
156 In these circumstances and notwithstanding the absence of evidence of contrition on the part of Mr Gutierrez, the Commissioner effectively accepted that there was no need for specific deterrence in either case.
Conclusions with respect to Mr Gutierrez and Mr Danalis
157 While there is no need for specific deterrence in either case, there remains a need for general deterrence. The respondents did not argue otherwise.
158 The Commissioner submitted that Mr Danalis’s contraventions should attract penalties in the mid-range because they were “premeditated, deliberate and sustained contraventions and involved the serious and disruptive blockade action”, and that a penalty “from mid-range” was also appropriate for Mr Gutierrez.
159 The Commissioner’s submission gives insufficient weight to the fact that neither Mr Gutierrez nor Mr Danalis has ever been found to have contravened an industrial law and to his effective acknowledgment that there is no need for specific deterrence. Moreover, while Mr Danalis’s overall conduct is more serious and extensive than that of Mr Gutierrez, it is substantially mitigated by his remorse and rehabilitation.
160 With respect to the contraventions on 15 October 2018 at the Ross Transport Yard, I would impose a penalty of $6,000 on each of Mr Gutierrez and Mr Danalis. With respect to the contraventions by Mr Danalis at the Port Kembla Coal Terminal on 15 and 16 October 2018, I would impose a penalty of $10,000.
Conclusions with respect to the Union
161 I will deal first with the contraventions for which the Union is taken to have engaged because of the conduct of its officers, being the three contraventions of the BCIIP Act.
162 It will be recalled that the maximum penalty for each of these contraventions is $210,000. The contraventions are serious but they are not so serious as to warrant penalties approaching the maximum. Viewed through the prism of the Union’s record, however, they are far more serious than the contraventions of the two union officials. Unlike the union officials, the Union is not entitled to any leniency because of its past behaviour. While the contraventions by the union officials might be regarded as uncharacteristic aberrations, the contraventions by the Union manifest a continuing attitude of disobedience of the law. While there is no need for specific deterrence in the case of the union officials, there is a pressing need for specific deterrence in the case of the Union. Having regard to the Union’s apparent disdain for industrial laws that get in its way, in order to achieve the objective of deterrence, both specific and general, substantial penalties are called for. That said, the Union is entitled to some credit for the utilitarian value of its admission of culpability and its cooperation with the regulator. Moreover, I am mindful of the need to ensure that the penalties are proportionate to the seriousness of the particular contraventions. In all the circumstances, I consider that the following penalties should be imposed on the Union:
(a) for the contravention by Mr Gutierrez on 15 October 2018, $126,000;
(b) for the contravention by Mr Danalis on 15 October 2018, $126,000; and
(c) for the contravention by Mr Danalis on 15 and 16 October 2018 at the Port Kembla Coal Terminal, $147,000.
163 I now turn to the contravention for which the Union is solely and directly liable for, the contravention of s 346 of the FW Act. In this respect, the Union’s conduct is similar to the conduct of the Maritime Union of Australia in FWO v MUA.
164 In FWO v MUA union posters were placed on noticeboards at various locations and on a bollard to an entry gate naming a number of employees as “scabs” for having worked while their workmates took protected action in a dispute with Fremantle Ports for a new enterprise agreement. The behaviour of these employees was described as “treacherous”, warranting condemnation by all Fremantle workers. The employees were referred to in the posters as “lowlifes”, who turned on their colleagues to do the bosses’ bidding. The poster also included a reproduction of the short essay attributed to the late author, Jack London, sometimes called “Ode to a Scab”.
165 Siopis J took a very dim view of the MUA’s conduct. His Honour considered that the poster was “particularly obnoxious” because it invited the reader to treat the named employees as “devoid of human dignity”, thereby marginalising them and affording a licence to their fellow employees to treat them as less than human (at [250]).
166 In the penalty decision (Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814; 252 IR 101), his Honour made the following remarks (at [57]–[58]):
Whilst the facts of this case relate to essentially the actions of two senior officials of the Western Australia branch of the MUA management, there is also a need to have regard to the general deterrent of precluding persons and corporate bodies whose conduct is regulated by the Fair Work Act, from misusing their power to harm those individuals who choose to exercise their workplace rights in a manner with which those persons or corporate bodies disagree. Respect for the self-worth and dignity of each person who participates in the Australian workforce is a value which underlies much of the adverse action protection of the Fair Work Act. The penalty should be at a level which will deter those who may be minded to act in a manner which infringes this core value.
In my view, the contraventions which occurred in this case fall into the category of an abuse of power by the powerful against the vulnerable, are serious contraventions.
167 These remarks apply with equal force in the present case.
168 Siopis J imposed a penalty of 75% of the maximum in respect of each contravention but reduced the aggregate penalties on the application of the totality principle. An appeal by the MUA, amongst other things alleging that the penalties imposed were manifestly excessive, was unsuccessful: Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154 (Tracey, Buchanan and Bromberg JJ).
169 This case is admittedly not on all fours with FWO v MUA. One case involved posters distributed at the workplace, the other a Facebook post. One named the strike breakers, the other displayed a photograph of a strike breaker. The language used by the Union in the Facebook post was not as colourful or offensive as the language used by the MUA in the posters. And in the MUA case there was evidence of actual harm. There is no such evidence here.
170 On the other hand, the reach of the Facebook post was much broader than that achieved by the posters. While Mr Williams was not identified, he was identifiable. While the language used in the two cases was different, the objective in each case was the same. Besides, the judgment in the MUA case was published in 2014. The conduct in the present case occurred in 2018. The need for deterrence is higher now than it might have been thought to have been then.
171 Taking all relevant considerations into account, I would impose a penalty of $44,000.
Totality: the final check
172 It seems to me that the aggregate sums payable by the Union and Mr Danalis should be reduced to reflect the fact that the conduct occurred on consecutive days and was directed to the same end and, in the case of the Union, to take account of the fact that some of Mr Danalis’s conduct on 15 October 2018 at both building sites was similar in character to the conduct of Mr Gutierrez at the Ross Transport Yard.
173 In order to do this, I propose reducing the penalties for the contraventions relating to the conduct of the union officials attributed to the Union by roughly 20% to $100,000 each for the two contraventions at the Ross Transport Yard and $120,000 for the contraventions at the Port Kembla Coal Terminal. I would make no adjustment to the penalty for the contravention of the FW Act.
174 I consider that the same matters need to be brought to bear on the aggregate penalties for Mr Danalis and will therefore reduce the penalties for both contraventions by a similar percentage to $4,800 and $8,000.
Ultimate conclusions
175 Declaratory relief will be granted. Mr Gutierrez will be required to pay a penalty of $6,000 and Mr Danalis two penalties of $4,800 and $8,000 with regard to his conduct at the Ross Transport Yard and the Port Kembla Coal Terminal respectively. The Union will be required to pay penalties for its contraventions of the BCIIP Act of $100,000 with regard to the conduct of the two union officials at the Ross Transport Yard and $120,000 with regard to Mr Danalis’s conduct at the Port Kembla Coal Terminal. The Union will also be required to pay $44,000 with regard to its contravention of the FW Act. The penalties should be paid to the Commonwealth as the Commissioner requested. There will be orders accordingly.
176 The Commissioner did not seek costs, presumably because the proceeding involved a contravention of the FW Act. In proceedings in a court in relation to a matter arising under the FW Act, s 570 of that Act prohibits a court from making an order that one party pay the costs of another unless satisfied, relevantly, that the proceedings were instituted vexatiously or without reasonable cause or the party’s unreasonable act or omission caused the other party to incur costs. These limits on a court’s power apply to any proceeding in which a claim is made under the FW Act, regardless of whether another claim is made under other federal legislation or, for that matter, in this Court’s accrued jurisdiction: Stanley v Service to Youth Council Inc (No 3) (2014) 225 FCR 357 at [28] (White J); Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 at [150]–[158] (Tracey, Gilmour, Jagot and Beach JJ), [215] (White J).
177 In these circumstances there should be no order as to costs.
I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. |
Associate:
