Federal Court of Australia
Australian Building and Construction Commissioner v Parker  FCA 704
VID 494 of 2020
Date of judgment:
INDUSTRIAL LAW – imposition of civil penalties – quantum of penalties in respect of admitted contraventions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – where elected union delegate held safety concerns – where a direction to stop work was given – where concerns held by the delegate about the adequacy of a first aid room were reasonable but there was no imminent risk to health and safety – where the Union to which the delegate belonged derivatively liable – where the Union has committed itself to putting in place measures designed to change the cultural and normative conduct of the contravening behaviours of its officers and employees insofar as work safety issues are concerned
PRACTICE AND PROCEDURE – declarations sought by consent – proposed declarations bare of contextual detail – declarations not made
Building and Construction Industry (Improving Productivity) Act 2016 (Cth) s 7(2)(c)(i), 46, 81
Fair Work Act 2009 (Cth) s 570
Federal Court of Australia Act (Cth) s 21
Occupational Health and Safety Act 2004 (Vic)
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case)  FCA 168
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the WGC Cranes Case)  FCA 622
BMW Australia Ltd v Australian Competition and Consumer Commission  FCAFC 167
Pattinson v Australian Building and Construction Commissioner  FCAFC 177
ABCC v CFMEU (The Quest Apartments Case) No 2  FCA 163
Fair Work Division
National Practice Area:
Employment and Industrial Relations
Number of paragraphs:
Solicitor for the Applicant:
Australian Building and Construction Commissioner
Counsel for the Respondents:
Mr P J Doyle
Solicitor for the Respondents:
Construction, Forestry, Maritime, Mining and Energy Union
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The First Respondent pay to the Commonwealth of Australia a penalty of $5,000.
2. The pecuniary penalty referred to in Order 1 be wholly suspended on the condition that the First Respondent commit no further offence against the provisions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) for a period of three years.
3. The Second Respondent pay to the Commonwealth of Australia a penalty of $85,000.
4. The pecuniary penalty referred to in Order 3 be paid to the Commonwealth of Australia within 28 days of the date of these orders.
5. Subject to Order 6, the Second Respondent pay the Applicant's costs of the proceeding as agreed in the amount of $10,000.
6. The Applicant pay the Respondents’ costs thrown away by reason of the adjournment of the hearing on 26 May 2021 with costs to be paid as agreed, or in default of agreement, as may be taxed.
1 This matter concerns the quantum of civil penalties the Court ought to impose on the First Respondent, Mr Steven Parker, a former elected delegate of the Construction, Forestry, Maritime, Mining and Energy Union (the Union), and the Second Respondent, the Union, in respect of an admitted contravention by Mr Parker, and the admitted derivative contravention by the Union of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (the BCIIP Act).
2 A breach of s 46 of the BCIIP Act is punishable by a “Grade A civil penalty”. Applying the value of the relevant penalty units to such a penalty as at the time of Mr Parker’s admitted contravention, it is uncontentious that the maximum penalty available to be imposed on Mr Parker is $42,000.00 and the maximum penalty available to be imposed on the Union is $210,000.00.
3 Both Mr Parker’s offending conduct and the derivative offending of the Union are established by reason of the admissions each respectively have made in their amended defences to the Amended Statement of Claim of the Applicant, the Australian Building and Construction Commissioner (the ABCC). The offending conduct admitted to, in very short summary, is that on the morning of 11 July 2019 Mr Parker gave a direction to two groups of workers who were employed by participants in the “Cross Yarra Partnership” that they were not to commence work “due to inadequate first aid facilities and inadequate lighting in a particular location of their worksite”. The Union’s derivative liability arises by reason of Mr Parker’s status as a workplace delegate of the Union having regard to the operation of s 94 and s 95 of the BCIIP Act.
4 The safety concerns that Mr Parker held at the relevant time is the subject of an agreed statement of facts. The parties are agreed that the safety concerns Mr Parker had and as were raised by him when giving directions to the workers not to commence work on the morning of 11 July 2019 were that:
(a) the bed in the first aid room was too high and not compliant with safety standards;
(b) the first aid room lacked a ramp access; and
(c) there was inadequate lighting in a particular location.
5 While not an agreed fact it is uncontentious that that the worksite at 220 Flinders Lane, Melbourne where the relevant events happened was large in scale. Mr Parker’s workplace was part of the Metro Tunnel Project which was designed to improve Melbourne’s rail network at a cost of some $11 billion.
6 As a result of two groups of workers having been directed by Mr Parker not to commence work on the morning of 11 July 2019 it is admitted by both he and the Union that many remained in their crib sheds for a number of hours before resuming their work despite their having been ordered to commence work by their employers and having been told by their employers that there was no immediate risk to their safety.
7 Mr Parker admits that both of the stoppages he occasioned was “unlawful industrial action” for the purposes of s 46 of the BCIIP Act. The Union admits that by reason of Mr Parker’s holding office as a union delegate, Mr Parker’s offending conduct is, by operation of law, also to be attributed to it.
8 Mr Parker’s admission that the industrial actions he occasioned were unlawful involves a concession on his part that his conduct did not fall within the exclusion provided for in s 7(2)(c)(i) of the BCIIP Act. That provision excludes liability for industrial action when it is based on a reasonable concern about an “imminent risk” to health and safety.
9 In its written submissions dated 12 February 2021 the ABCC accepted that although two contraventions had been admitted, the Court should proceed on the basis that they each arose out of the same course of conduct such that there should be a single penalty imposed in respect of both. I proceed on that basis.
10 In its submissions of that date which were advanced in anticipation of a hearing scheduled for 22 April 2021 the ABCC submitted that Mr Parker’s contravention should attract a mid-level penalty because of the seriousness of his contravention, the questionable nature of the health and safety concerns he raised, the opportunities available to him to bring it to an end, the disruption caused to a major infrastructure building project in the CBD of Melbourne, and his absence of contrition and remorse. It submitted that the Union’s contravention should attract a penalty in the very high range, having regard to Mr Parker’s conduct (to be attributed to the Union) and having regard to its ongoing recidivism and the resultant need to deter it from its deplorable approach to complying with the law.
11 However, when this matter came before the Court for hearing on penalty on 22 April 2021 it became apparent that those written submissions relied, to a not insignificant degree, on an unsound understanding by the ABCC of the scope of the admissions Mr Parker and the Union had each made.
12 It is convenient to give an explanation as to that circumstance.
13 These proceedings were commenced by the ABCC by way of a Statement of Claim dated 24 July 2020. As then pleaded the ABCC sought relief not only against Mr Parker and the Union, but also against a number of the individual workers who had declined to start work on the morning of 11 July 2019.
14 That proceeding was referred to mediation.
15 Properly I was not informed as to the content of that mediation but the parties self-evidently reached a partial settlement. The effect of that partial settlement was reflected in the orders the Court made by consent on 7 December 2020. The ABCC was given leave to discontinue as against the Third to Thirteenth Respondents (the individual workers) without liability to costs. I made directions that:
3. The Applicant has leave to file and serve an Amended Statement of Claim by 7 December 2020, in the form agreed to by the parties in the terms of settlement.
4. On or before 9 December 2020, the parties file a Statement of Agreed Facts, signed by the legal representatives of the parties in the form agreed to in the terms of settlement.
5. On or before 14 December 2020, the first and second respondents file and serve an Amended Defence admitting all matters alleged in the Amended Statement of Claim.
6. On or before 15 January 2021, the applicant file and serve an Outline of Submissions and any evidence upon which he intends to rely as to the question of penalty.
7. On or before 5 February 2021, the respondents file and serve an Outline of Submissions and any evidence upon which they intend to rely as to the question of penalty.
16 The nature of the most significant of the misunderstandings as became apparent when the matter came before me on 22 April 2021 for hearing was that the admissions Mr Parker and the Union had made went beyond the facts the ABCC had pleaded in the Amended Statement of Claim: their admissions had not extended to the particulars.
17 The ABCC was thus seeking penalties within the ranges advanced in its written submissions on the unavailable premise that that Mr Parker, using his position and status as a Union shop steward had deliberately brought about the two stoppages “relying on a safety pretext”. Putting aside there had been no identification of what that pretext was or might have been even in the particulars, no such allegation had been pleaded or admitted.
18 That in turn potentially influenced the ABCC’s then submission that penalties were to be imposed on the basis that the proceeding was but another example of “the same modus operandi deployed by the [Union] and its officers on an exceedingly large number of previous and subsequent occasions”.
19 The lens of analysis as had been advanced by the ABCC, notwithstanding the agreed statement of facts, that Mr Parker had been acting not on the basis of a genuine concern for the safety of himself and his workmates but on the basis of an undisclosed “pretext” not having any basis in the admissions having been drawn to its attention the Court granted the ABCC’s application that the penalty hearing be adjourned so as to permit it to reconsider its positon.
20 However prior to that adjournment having been sought and granted discussion had earlier taken place as to how the Court on the resumed hearing should address the task of further fact finding—the Respondents having filed two affidavits they had given notice they would seek to read in respect to the circumstances of the event and more generally in mitigation. The first affidavit was sworn by Mr Paul Tzimas, an employed Organiser of the Union. In it he deposed to certain dealings he had had at the worksite after Mr Parker had rung him to draw attention to some concerns Mr Parker had about safety on the site. The second affidavit was sworn by Mr Brian Lacy AO. In his affidavit Mr Lacy deposed to instructions he had been given by the Union to provide training to its members on the rights and responsibilities of union officials in respect of work safety matters and, more specifically, as to the training he had provided to Mr Parker.
21 In respect of both of those affidavits, notice of a large number of objections to the admissibility of particular parts had been given by the ABCC.
22 In what proved to be a vain hope that the ABCC might assist the Court by narrowing the potential field of disputes to those truly in contest as between the parties, the Court made orders by consent inter alia that:
The Applicant identify any factual matters in the submissions advanced and the affidavits in support thereof which the Applicant disputes and would seek judicial determination of no later than 4:00pm on Friday 7 May 2021.
23 By a note filed on 7 May 2021 the ABCC indicated that Commissioner would neither seek to adduce further evidence nor seek to cross-examine the Respondent’s witnesses. However, unhelpfully, the note then did not assist to identify the agreed and disagreed premises upon which the ABCC would contend the Court should fix penalties. In that regard the note stated:
3. The Court’s fixing of penalties should proceed on the admissions made in the Respondents’ defences, together with the statement of agreed facts dated 9 December 2020, and any additional evidence, subject to its admissibility. It will ultimately be a matter for the Court to determine what weight, if any, is to be attributed to such evidence in the exercise of its penalty discretion. The Commissioner will further develop its submissions as to the penalty-fixing considerations in his Reply Outline due 14 May 2021. One of the submissions that he will develop in the Reply Outline is that the Commissioner has no legal or practical onus to disprove assertions in mitigation which are unsupported by evidence.
4. The Commissioner will consult with the Respondents prior to the hearing with a view to minimising unresolved objections to the Respondents’ proposed evidence. Should there be any unresolved evidentiary objections, the Commissioner will press those objections for determination by the Court.
24 On 25 May 2021, an Updated Joint Table of Unresolved Objections was filed by the parties.
25 That document disclosed that a large number of objections to the affidavits of Mr Tzimas and Mr Lacy still would require judicial determination.
26 Neither the ABCC’s note nor the table of unresolved objections thus assisted the Court to clarify the premises upon which the ABCC would submit penalty should be imposed. To take but one small example, an objection based on hearsay was advanced in relation to the proposition that Mr Parker had become unemployed but was continuing to seek employment in the building industry. One might have thought the ABCC could have either accepted that to be so or specified that it was disputed.
27 When the hearing resumed that particular hearsay objection, in common with many others, was not pressed. It is unnecessary to set out the Court’s rulings on the relatively few objections that then remained in issue; where relevant I refer to those instances in these reasons.
28 The Court accepts that the ABCC and the Union are old foes and that litigation as between them will always be hard fought but the Court is entitled to expect that proceedings will not be conducted as a blood sport where issues not genuinely in contention are not acknowledged unless strictly proven. It wastes the Court’s time if that does not occur. When it is done it means that that those which remain in issue can be brought into sharp focus.
29 In any event prior to these penalty proceedings returning to the Court little had been done to narrow the scope of that which required judicial determination.
30 I acknowledge that the ABCC did file supplementary written submissions dated 17 May 2021 under the title Applicant’s Outline Submissions in Reply (AOSR). At  of those submissions the ABCC concedes that Mr Parker is not to be penalised on the basis that his concern about safety had been a mere pretext for his having directed the workers not to commence work on the morning of 11 July 2019. Taking that into account the ABCC advanced revised submissions that Mr Parker should be subject to penalties at the lower end of the mid-range rather than in the mid-range and the Union should be subject to penalties at the high range rather than the very high range.
31 However the AOSR continued to rely on facts that had neither been admitted nor agreed. Thus it asserted that Mr Parker had refused to sign the cease work documentation that had been prepared by his employer after the stoppages. In that regard the ABCC submitted that the reasonable inference the Court should draw was that “Mr Parker refused to sign because he knew his concerns did not justify a stoppage of work under the site safety procedures”.
32 In common with its earlier assertion that Mr Parker’s conduct was undertaken as a pretext the basis for that contention appeared only in the particulars of its Further Amended Statement of Claim. There had been no admission by either Mr Parker or the Union of that fact.
33 Like a battleship in full steam, the ABCC thus appears to have had had difficulty turning. Having commenced its proceedings on the premise that Mr Parker’s conduct was motivated by something beyond that established on the admitted facts (including those in the agreed statement of facts) it had continued to press its submissions based on unavailable premises without having substantially reviewed its position.
34 Thus in its AOSR the ABCC submitted at : “The Commissioner has outlined all relevant circumstances at Part D.2 of his outline.” That refers to Part D.2 Paragraph  of the ABCC’s earlier written submissions in which the ABCC contended that the Court ought to characterise Mr Parker’s conduct as follows:
(a) Parker’s invocation of the height of the bed in the first-aid room as constituting an imminent risk to the health and safety of workers was baseless and misconceived;
(b) Parker relied on a safety pretext to procure the stoppage, which was not based on a reasonable concern of employees about an imminent risk to health and safety;
(c) Parker abused his position and influence as a shop steward and health and safety representative to procure the unlawful stoppages;
(d) Parker refused to comply with Amor’s request to comply with the procedures in place to document the cessation of work;
(e) There were established procedures under the OHS Act for Parker to raise any safety concerns for resolution. Parker (as an elected health and safety representative) must have known of these procedures, yet chose not to engage them;
(f) Parker’s abuse of his safety role and his failure to follow safety procedure had the potential to undermine health and safety measures on an important project;
(g) The stoppage lasted for approximately 4 hours and 15 minutes. Parker had a full opportunity to reflect upon his actions and seek to bring an end to the stoppage. He did not avail himself of that course;
(h) The stoppage caused financial and productivity losses (see further below at Part D.3); and
(i) Parker’s conduct required the attendance of WorkSafe to the site, who confirmed that the issues raised did not warrant a cease work direction. The resources of WorkSafe should not have to be put to wasteful and nefarious purposes.
35 As will be seen from the above, the ABCC continued to press that the relevant circumstances of Mr Parker’s offending remained as had been outlined in its earlier written submissions notwithstanding it no longer pressed that Mr Parker had relied on his concerns about safety as a pretext. It continued to press its larger contention without there being any basis for asserting that Mr Parker had refused to comply with a request to document the stoppage of work (see paragraph 22(d)) and it continued to assert (see paragraph 22(i)) that Mr Parker’s conduct should be concluded to have involved “nefarious purposes”.
36 Nefarious is a very strong word. It connotes something wicked or criminal. In the absence of Mr Parker’s conduct having been merely a pretext for some unidentified malevolent object (a proposition which the ABCC had accepted was not available to it) there was nothing in the facts, admitted or agreed, as could justify such an assertion.
37 The Court should not have been invited to impose penalties on that premise.
38 Additionally in its AOSR the ABCC over-egged what had been (impliedly) conceded by Mr Parker as to his state of mind. It that regard it submitted;
7. …The admissions made by the Respondents exclude any notion that Mr Parker (and the employees who engaged in the first and second stoppages) held a concern about an imminent risk, let alone that any such concern was reasonably based. No evidence can be called on penalty that contradicts or qualifies this admission.
39 I have earlier indicated that Mr Parker’s admissions that the industrial actions he had occasioned was unlawful necessarily involved a concession on his part that his conduct fell outside of the exception provided for in s 7(2)(c)(i) of the BCIIP Act. That provision excludes liability for industrial action when it is based on a reasonable concern about an “imminent risk” to health and safety.
40 However, that Mr Parker must be taken to accept, assessed objectively, that a defence based on s 7(2)(c)(i) of the BCIIP Act would not have availed him, does not require the conclusion that his asserted concerns about safety were not in fact held, perhaps even reasonably held. It denies only that he could contend that his concerns involved a circumstance in which there was an imminent risk to his fellow worker’s health and safety.
41 The ABCC’s written submissions then unhelpfully engaged only partially with what the ABCC itself, in a Statement of Agreed Facts filed on 9 December 2020, had accepted applied in respect of Mr Parker’s motivation and conduct viz:
2. In engaging in the conduct alleged at paragraphs  and  of the applicant’s Amended Statement of Claim, the safety concerns held by the first respondent and raised by him with the workers as the basis for the first direction and the second direction were:
(a) the bed in the first-aid room was too high and not compliant with the Australian standards;
(b) the first-aid room lacked a ramp access; and
(c) inadequate lighting in a particular location.
42 The ABCC’s submissions describe Mr Parker’s concerns regarding the height of the bed in the first aid room as baseless and misconceived—but conspicuously they omit any reference to what the Court might make as to the validity of his (acknowledged in the agreed statement of facts) concern about a lack of a ramp to provide access to the first aid room.
43 The omission stands out as of consequence once regard is had to what is revealed by three photographs of the first aid room in Annexure PJT-6 of the affidavit of Mr Tzimas as later was read in this proceeding. When what those photographs reveal is contrasted with the guidance standards set out in Worksafe Victoria’s Compliance Code First aid in the workplace which is Annexure PJT-3 to Mr Tzimas’s affidavit the Court is drawn to the conclusion that Mr Parker’s concerns about the adequacy of the first aid room may have been far from baseless and misconceived.
44 For higher risk workplaces (I have no difficulty in inferring that the major construction site at which Mr Parker worked was such) employing more than 100 workers (as the ABCC’s own case regarding the scale of the project entitles me to infer was the fact), what Annexure PJT-6 reveals is required to satisfy compliance obligations under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) was follows:
59. The first aid room needs to be large enough for its purpose, well lit and well ventilated. It also needs to be easily accessible by injured people who may need to be supported or moved by stretcher or wheelchair, and needs to have easy access to toilets.
60. The following items need to be provided in the room:
• resuscitation mask
• sink and wash basin with hot and cold water
• work bench or dressing trolley
• cupboards for storing medicaments, dressings and linen
• a container for soiled dressing
• a sharps disposal system
• electric power points
• a couch with blankets and pillows
• an upright chair
• a desk and telephone
• signage indicating emergency telephone numbers
• signage indicating emergency first aid procedures
• a stretcher
• a first aid kit appropriate for the workplace.
45 The exterior photograph of the first aid room as shown in Annexure PJT-3 reveals that the first aid room in question has a step up before rising to a narrow corridor railed off from the main work areas. There appears to be no way a wheelchair could access the first aid room—and a high degree of unlikelihood any person on a stretcher could be safely manoeuvred into or out of it.
46 I reject that I would be entitled to find that Mr Parker’s concern about the adequacy of the first aid room was not reasonably held by him—albeit in respect of a circumstance potentially arising (had there been an emergency requiring access to or from it by wheelchair or a stretcher) rather than imminently so.
47 I reject as entirely implausible the submission advanced on behalf of the ABCC late in oral argument that it would not be open to the Court to so reason because there was no evidence that there had been only one first aid room at Mr Parker’s workplace.
48 The particulars to  of the ABCC’s statement of claim (conceded against interest by counsel for Mr Parker as available for the Court to have regard to for contextual purposes) refer to “the first aid bed” in the singular.
49 Moreover the agreed facts set out above at  refer to “the” first aid room lacking a ramp in the singular.
50 It that circumstance it was bordering on the improper for the ABCC to have invited the Court to proceed in these penalty proceedings on the basis that there may well have been a second, presumably better provided for, first aid room available at the work-site which Mr Parker had overlooked.
51 The Court, as its directions of 22 April 2021 anticipated and sought, was entitled to expect assistance from counsel representing the ABCC in identifying a sound factual basis for the imposition of penalties. I regret that little or nothing in the nature of such assistance was forthcoming in this case.
52 Having made those observations I turn to the evidence adduced on behalf of Mr Parker and the Union. I have anticipated some aspects of that evidence above. Where I have done so I will not repeat it.
53 Mr Tzimas swore an affidavit. He was not required for cross-examination. His evidence was that he had been employed by the Union as an Organiser since September 2017. His role had been to look after members on civil construction projects including the Melbourne Metro Tunnel project. His day to day duties included matters of health and safety.
54 He explained that delegates such as Mr Parker are unpaid volunteers—whether they have been elected or appointed as such by an Organiser. The Union has more than 500 delegates across more than 300 jobsites, most of whom are also health and safety representatives (HSR) elected under the OHS Act.
55 His evidence was that Mr Parker had been elected as a delegate and HSR at the Melbourne Metro Tunnel Project on or around 1 March 2018. Prior to that Mr Parker had been a delegate and HSR on two other sites from around May 2017.
56 His evidence is that on 4 July 2019 Mr Parker had rung him for advice about a safety issue involving safe retrieval from elevated work platforms. Mr Tzimas had visited the site for some hours. He had issued a notice of suspected contravention in relation to that issue. He had then worked with the site superintendent on other safety concerns.
57 Mr Tzimas had raised a concern about inadequate first aid facilities with the site superintendent—being that the positioning of the door relative to the handrails on the stairs made it physically impossible to get a person on a stretcher into the room. The site superintendent had agreed that “they would bring the first aid facilities up to standard…”
58 On 10 July 2019 Mr Parker had again rung Mr Tzimas for assistance—this time specifically about safety matters relating to first aid and first aid responses “because they hadn’t made the changes to the first aid facilities we had discussed with [the site superintendent]”. Mr Parker had reported “that if anything they had gone backwards” although Mr Tzimas couldn’t recall what aspect of the adequacy of the first aid facilities that “may have gone backwards” that Mr Parker had been referring to.
59 Mr Tzimas had visited the site later that day and, after passing Mr Parker on his way out, had given the site superintendent a notice of suspected contravention of the OHS Act. In that notice he had detailed the Union’s concerns about safety including, inter-alia, inadequate first aid facilities. He then took photos of the first aid room—the photos which I have earlier referred to in these reasons. He had conferred with the site superintendent about that and about other safety issues including the availability of vaccinations. He was on the site for around one and a half to two hours.
60 He thought it was probable that he would have spoken to Mr Parker later that day but he had no specific memory of having done so.
61 Whether Mr Tzimas did or did not speak to Mr Parker later on 10 July 2019 is ultimately immaterial: there is nothing at all in evidence to suggest that it was at his urging (or in response to his suggestion) that Mr Parker had called the stoppages he initiated the next day.
Mr Lacy AO
62 Mr Lacy gave evidence by affidavit that he is a barrister specialising in employment and industrial law. Between 2001 and 2009 he was a Presidential Member of the Australian Industrial Relations Commission.
63 In February 2020 he had been briefed by the Victoria-Tasmania Branch of the Union to provide training in responsibilities and obligations under industrial and work health and safety laws to executive officers, organisers and shop stewards of the Union. The training he was to provide had been delayed by reasons of the COVID-19 pandemic but had been rescheduled to commence in March 2021.
64 I interpose that in the ABCC’s Outline submissions in Reply it was submitted that the Union “has been proposing training for its officials since 6 February 2020 when Mr Lacy AO had first foreshadowed it…” The Court was urged in those circumstances to give little weight to “this proposed training”.
65 There being no property in a witness one might wonder why the ABCC did not simply ask Mr Lacy as to the contemporary circumstances before advancing that submission but in any event, it having been pressed in respect of the evidence of a witness who had not been required for cross-examination, I gave leave for the Respondents to file a supplementary affidavit to address that subject.
66 On 28 May 2021 the Respondents filed an affidavit of Ms Elayne Palmer. She is an employed solicitor of the Union’s Construction and General Division Victoria Branch. She had drafted the original letter of instructions to Mr Lacy. She deposed:
8. The training was originally intended to be provided to the Branch executive officers and to those organisers and shop stewards who have been named respondents in penalty proceedings in relation to contraventions of workplace laws. It was later decided to require all organisers to attend the training.
9. In addition, all organisers and shop stewards who are found to have contravened workplace laws are required to have one-on-one training with Lacy, focussed on those contraventions.
10. The training was delayed due to the restrictions associated with the COVID-19 pandemic. Due to the importance of the training, Graauwmans and I considered that it should be delivered face-to-face, which we considered would allow for better quality training. This decision was also made because none of the organisers have a computer at the office and not all of them have a computer at home.
11. The training went ahead on 15 March 2021. I met with Lacy in advance of the training to discuss the content of the training and assisted him on the day to present the content.
Annexed to this my affidavit and marked EDP-1 is a true copy of a PowerPoint presentation that Lacy delivered during the training.
12. I refer to slides 54-56 of the PowerPoint presentation. In discussion during the training session about those slides, the concept of ‘imminent risk to his or her health or safety’ was explained. The scenario described in slide 55 was based on the circumstances of this case, and during the training session it was explained to the attendees that the stoppage would not be lawful because there was no imminent risk to health and safety.
13. The training was attended by 30 officials, including four current shop stewards who have been found to have contravened workplace laws.
14. A second session for 12 officials who were unable to attend the training on 15 March 2021 is scheduled for 19 July 2021.
67 Ms Palmer was not required for cross-examination and I accept her evidence.
68 Returning to the particular circumstances of Mr Parker, Mr Lacy’s evidence is that on 29 September 2020 he was specifically briefed by the Union to provide training to Mr Parker in the responsibilities and obligations of union delegates, elected health and safety representatives and building industry employees under applicable industrial and work health and safety laws. He provided that training. He submitted a report to the Union about the training he had provided to Mr Parker on 2 March 2021.
69 Objections to the admissibility of many parts of that report were pressed by the ABCC. I rejected all of the ABCC’s objections in so far as they related to the conduct of the Second Respondent Union. I did so on the basis that the report (Annexure BL-2) including what Mr Lacy reported to the Union as having been told to him by Mr Parker as to his thinking at the time and his future intentions was not hearsay in that context and was relevant to an issue before the Court—the willingness or otherwise of the Union to allow a person with Mr Parker’s background of a contravention of the law with respect to safety issues to hold any future role of responsibility within the Union.
70 However in respect of what Mr Parker told Mr Lacy about his motivations on 11 July, I accepted Mr Dalton QC’s submission on behalf of the ABCC that that is hearsay in Mr Parker’s instance and that no exception which would allow it to be admitted in evidence in his case applies.
71 However, critically, no objection was pressed either as against the Union or Mr Parker on behalf of the ABCC in respect of what Mr Lacy’s report states at . That passage is as follows:
14. In the course of the discussion Parker demonstrated a clear understanding of the rights and obligations of an HSR for dealing with health and safety issues in the workplace in future. Parker was taken to the terms of sections 73 and 74 of the OHS Act and he said he understood that a HSR cannot direct a cessation of work for any perceived health and safety issue. There must be an immediate threat to health and safety and he must and said he would in future consult with an employer about cessation of work in the event of an immediate threat to health and safety. He said he would comply with the requirements of the legislation in dealing with health and safety issues should he be successful in gaining employment in the building industry.
Findings of fact
72 Mr Parker had held a role of delegate and HSR on behalf of the Union for a number of years prior to the present incident.
73 Mr Parker has no history of prior offending.
74 I find it to be uncontentious that as at the time of his training by Mr Lacy, Mr Parker had become unemployed. I was informed, without objection, from the bar table that Mr Parker had later found short term employment in Western Australia but is now again unemployed.
75 The evidence I have set out at - entitles me to infer that when Mr Tzimas had visited the site on 4 July 2019 Mr Parker had participated in the relevant discussions with the site superintendent—at least in so far as those discussions touched on the adequacy of the first aid facilities. That is apparent from Mr Tzimas’s reference to a phone call he had received from Mr Parker which refers to his earlier visit and conversations with the site superintendent and the latter not having made the changes “we had discussed with [him]”.
76 I am entitled to find that nothing had been done over the course of the following days to address those concerns—leading to Mr Parker calling Mr Tzimas on 10 July to again complain about safety on the site and, in respect of the first aid room, to tell him that rather than rectifying the deficiencies “they had gone backwards.” Further context for that remark is not available but I am entitled to infer it conveys, at least, some degree of frustration.
77 I am entitled to find that Mr Parker’s concern about the adequacy of the first aid room (which given the terms of the agreed statement of facts is not in issue) was in one not insignificant particular both reasonable and justified.
78 I take it to be a matter of common knowledge that any major construction site can be, absent a focussed attention on safety, an inherently a dangerous place to work.
79 The prospect of an injury on such as site that might require a person to be conveyed by stretcher to first aid may not be “imminent” but it is self-evidently foreseeable that such a circumstance may emerge.
80 In that regard what is shown by the photograph of the exterior of the first aid room that is in evidence is there was no ramp and that access to or from that room by anyone on a stretcher would have been impossible or at least highly problematic. I am satisfied that any HSR on a major worksite would have a reasonable basis for concern in that regard. I am satisfied that Mr Parker’s concern, viewed objectively, was a reasonable one. I reject the ABCC’s submission that Mr Parker’s refusal to sign what his employer had drafted to document his direction to stop work because he knew his concerns had not justified a stoppage. It may be accepted that that document is unsigned as it appears in the Court Book but there is nothing in the available admissions or in the statement of agreed facts as would justify this Court finding that it being unsigned was as a result of Mr Parker having refused to sign it. Nothing in the affidavit of Ms Rhian Soedarsono which is footnoted to that submission compels that conclusion.
81 Mr Parker did not give evidence. Having rejected as hearsay what he told Mr Lacy about what was in his mind on the morning of 11 July 2019 when he directed two groups of workers not to commence their shifts I am nonetheless entitled to infer, having regard to his history of having been involved in earlier discussions about the adequacy of the first aid room and what he had said to Mr Tzimas the previous evening, that he was motivated not only by his concern about the potential for his fellow workers being put at risk if a serious safety event was to happen but also some frustration at the inaction of the site superintendent in responding to those concerns as had been first raised with him on 4 July 2019.
82 Neither factor excuses his conduct in having called two groups of employees to stop work in the absence of an objectively imminent risk to their safety but it renders it explicable on a human level.
83 I am satisfied that I am entitled to find that the stoppages Mr Parker directed have caused some financial losses to one or more of the consortium of companies involved in the Metro Tunnel Project but I have nothing that would permit me to quantify that loss. I would however not be right, given the number of employees involved, and the period over which the stoppages persisted, to proceed on the basis that those losses were merely trivial.
84 There is no evidence that Mr Parker has expressed contrition for his conduct. I find that he has not apologised for it.
85 On the other hand there is clear evidence to satisfy the Court (see above at ) that Mr Parker has fully accepted, with the benefit of the training that he has since been provided with by his Union, that his conduct was unlawful. I am satisfied he has committed himself to the outcome that his conduct will not be repeated if he gets the opportunity to work again in the construction industry.
86 There is no evidence to suggest that Mr Tzimas or any other official of the Union at any time urged or suggested that Mr Parker initiate the stoppages he directed on 11 July 2019.
87 To the contrary the evidence is wholly consistent with Mr Tzimas having conducted himself in an exemplary manner and consistently with the provisions of the relevant legislation when responding to the safety issues that had been drawn to his attention by Mr Parker and those others which he himself had identified while on the worksite. Mr Tzimas had no reason to apprehend that Mr Parker might be so concerned about the adequacy of the first aid room and/or had become so frustrated at the delay in rectifying its deficiencies that he might call the workers out a day after Mr Tzimas had given formal notice of a relevant suspected contravention of the OHS Act.
88 Nonetheless by reason of the provisions of the BCIIP Act Mr Parker’s offending when acting within the scope of his apparent authority as a union delegate must be taken to be also that of the Union.
89 However the actual circumstances in which such offending arises are not irrelevant to penalty—if Mr Tzimas as a senior employee of the Union had done anything to induce Mr Parker’s conduct I take it to be uncontentious that the gravity of the Union’s derivative offending as relevant to penalty would be significantly greater. But he did nothing of that kind.
90 I am further satisfied that I am entitled to find that since February 2020 the Union, by its engagement of Mr Lacy, has committed itself to put in place measures designed to change the cultural and normative conduct of the contravening behaviours of its officers and employees (as has been castigated in this Court on many occasions) at least in so far as work safety issues are concerned.
91 I do not accept that the Union has chosen to pursue that course as being evidence of contrition. I think an equally probable explanation is that the Union itself belatedly has come to the pragmatic conclusion that misuse of the protections provided by health safety laws risks undermining the interests of its members rather than strengthening them. As Jessup J observed in Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case)  FCA 168 (the Kane Constructions Case) at :
133 …Were it to become commonplace, conduct of this kind could only tend to undermine the legitimacy of such genuine health and safety concerns as might be expressed by the CFMEU from time to time, to the long-term detriment of workers in the industry…
92 On that understanding what the Union has done is a modern acknowledgment of the moral of the boy who cried wolf—that too many such cries can lead to demands for safety measures being ignored even when they may be fully justified and need to be instantly responded to.
93 But the reason or reasons as may have motivated the Union’s decision is ultimately immaterial—what is centrally important is that as an institution the Union has seen fit to put in place the training Mr Lacy is facilitating in order to avoid or minimise a repeat of such actions as were taken, contrary to industrial law, by Mr Parker. I am satisfied that the Union provided that specific training to him notwithstanding he was no longer employed within the industry because it was aware that he was still seeking such employment and it wanted to be assured that if he again was to hold a responsible position within the Union he would proceed on the basis that similar conduct would not be accepted.
94 I find that Mr Lacy has already commenced to roll out training on the Union’s behalf. I am satisfied that the present intention of the Union is to continue to provide that programme as Ms Palmer gave evidence of. Whether that intention survives the test of time will only become apparent in due course but the fact that it has begun entitles me to proceed on the basis that this is not a boilerplate instance of the Union condoning, as all too often in the past it would appear to have done, capricious and unjustified breaches by its officials of the norms of industrial law—in respect of safety issues.
95 I accordingly reject the ABCC’s submission that I should approach penalty setting in this proceeding on the basis that the Union has demonstrated “the same modus operandi deployed by the [Union] and its officers on an exceedingly large number of previous and subsequent occasions”.
The principles in setting penalties
96 The commencing point is of course the statute. Section 81(6) of the BCIIP Act relevantly provides:
(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.
97 In Pattinson v Australian Building and Construction Commissioner  FCAFC 177 Besanko and Bromwich JJ identified three different approaches as to how prior misconduct of an offender might be taken into account in imposing civil penalties—accepting that deterrence, both general and specific are the sole foci of that task.
227 The possible approaches that could be taken to the role of prior contraventions in the task of imposing a civil penalty for a further contravention may be summarised as follows:
(1) Prior history is not relevant to the characterisation of the seriousness or gravity of the instant contravening conduct and only plays a role in deciding where in the range of already appropriate penalties that conduct falls. This is the argument advanced by the appellants, and rejected by the Chief Justice, White and Wigney JJ, and by us.
(2) Prior history can inform the seriousness of the instant contravening conduct to the extent of justifying the imposition of the maximum penalty for conduct that is not of itself of that character, because of the primacy of the role of deterrence. This is the approach urged upon us by the respondent’s notice of contention, being in substance what the primary judge in fact did despite his Honour’s comments perhaps suggesting the contrary. This unavoidably entails putting the principle of proportionality identified in Veen v The Queen (No 2)  HCA 14; 164 CLR 465 (Veen No 2) to one side. It is an approach that is contrary to any persuasive authority or the proper understanding of the relevant principles of civil penalty imposition derived from criminal sentencing, and is also rejected by the Chief Justice, White and Wigney JJ, and by us.
(3) Prior history may be relevant to an assessment of the seriousness or gravity of the instant contravening conduct, but neither that history, nor the object of deterrence, can result in a penalty that is disproportionate to the contravening conduct itself, having regard to the maximum penalty provided. This is directly supported by the principles stated in Veen No 2, especially at 477–8, as analysed by the Chief Justice, White and Wigney JJ. This is the correct approach.
98 In these proceedings it is submitted by the ABCC that the reasoning in that case may be distinguished. I accept that the High Court has granted special leave to appeal the correctness of that reasoning. However I am unpersuaded that that reasoning in Pattinson is relevantly distinguishable. I therefore must proceed on the basis that until the High Court determines otherwise, as a single judge of this Court, I am bound to apply the law as it has been expressed by the Full Court.
99 More generally the approach I should take is as summarised by Katzmann J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the WGC Cranes Case)  FCA 622:
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  (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  (Allsop CJ, White and O’Callaghan JJ); Pattinson v Australian Building and Construction Commissioner  FCAFC 177; 384 ALR 75; 299 IR 404 (Allsop CJ, Besanko, White, Wigney and Bromwich JJ). In Pattinson at  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.
100 In the course of deliberating on the appropriate penalty to be imposed on the Union in the circumstance of that case her Honour observed of its history in broad terms I do not take Mr Doyle to dispute that:
140 …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  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”…
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)  FCA 957 at  and Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2)  FCA 973 at  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”.
101 However as I have earlier noted this is not a boilerplate case where such remarks can apply without adaption to the specific facts of this case. The Union perhaps remains entirely recalcitrant in other contexts but in respect of safety issues I have made findings that it is taking positive steps to put in place measures to change the cultural and normative conduct of the contravening behaviours of its officers and employees: see above at -.
In what amounts should penalties be paid
102 Mr Parker has no prior history of offending.
103 I accept that Mr Parker’s contravention had objectively serious consequences. While I am unable to quantify the losses the several hours of lost time the stop work caused his employer and the other participants in the Cross Yarra Partnership to suffer (and the ABCC has not sought to prove those losses) I accept they may not have been trivial.
104 I have set out at – above the circumstances in which those contraventions took place and need not repeat them.
105 I do not discount (a subject I will return to imposing penalties on the Union) that his actions on 11 July 2019 may have been contributed to by Mr Parker having become acculturated to his serving (albeit unpaid and in a minor capacity) as a representative of a Union with a history of wilful recidivism and asserted impunity from obedience to the law. I note however that the Court has concluded that Mr Parker was motivated not only by a reasonable concern about the potential for his fellow workers being put at risk if a serious safety event was to happen, but also some frustration at the inaction of the site superintendent in responding to the concerns about the first aid room that been raised with him on 4 July 2019.
106 I reject the ABCC’s submission that his conduct was deliberate and serious to the extent it suggests a contemptuous disregard of the law or any degree of moral obloquy on his part in pursing some other industrial pretext. I reinforce that observation by reference to my earlier remarks regarding the inherent risk of injury to workers employed on a large construction site. It is not irrelevant that Mr Parker’s concerns about the adequacy of the first aid room had not been responded to in the week that followed his having been involved in discussion in which those concerns had been drawn to the attention of the site superintendent. Some degree of frustration on Mr Parker’s part was entirely predictable in that circumstance.
107 Although I proceed on the basis that there was no “imminent risk”, if a serious incident had occurred and as a result of that neglect access to the first aid room had proved difficult the consequences might have seen this matter play out very differently. That the ABCC sought to characterise Mr Parker’s conduct as being merely a pretext (without ever specifying the nature of the alleged pretext) suggests that the circumstances of the stoppage Mr Parker unlawfully occasioned may have been responded to in light of what Jessup J warned about in the Kane Constructions Case; the legitimacy of a valid safety concern being undermined having regard to the prior record of the Union in asserting such claims without a valid foundation. However as Freud is reported to have observed “sometimes a cigar is just a cigar”. Similarly, sometimes a concern about safety is no more or less than that.
108 Mr Parker is presently unemployed.
109 I am satisfied that although Mr Parker has not proffered an express apology the evidence is that, his having undertaken the training offered to him by Mr Lacy, if he is re-employed in the construction industry he will come to that employment with a far better understanding of his legal rights and responsibilities in respect of safety and with a commitment not to reoffend.
110 I reject that any significant penalty needs to be imposed in respect of specific deterrence.
111 In respect of general deterrence I accept the position is necessarily quite different. While Mr Parker’s Union has commenced a process of training having the object of minimising the prospects that other persons in a like position will offend in a like manner that process has only begun. Changing the culture of a union with the history of the CFMMEU even if limited to safety matters may not be a simple process. The Court should therefore impose a penalty appropriate to dissuade other delegates or officers taking unlawful industrial action—even if well motivated action—where it is in breach of the law.
112 The process of fixing any civil penalty ultimately requires the taking account of all factors. In my view the appropriate synthesis of the relevant factors in Mr Parker’s case requires the Court to balance the high improbability of his future offending with that need to ensure general deterrence. Others in like positions should not be led to think that such offending can be undertaken with impunity.
113 In my view the synthesis the Court is entitled to reach involves recognising the seriousness of the consequences of the breach Mr Parker occasioned by imposing a penalty in the low middle range as contended for by the ABCC but having regard to the facts and his personal circumstances wholly suspending it on condition that he commit no further offence against the provisions of the BCIIP Act for a period of three years.
114 The Court has a discretion to suspend the operation of a pecuniary penalty order for a specific period and subject to conditions: ABCC v CFMEU (The Quest Apartments Case) No 2  FCA 163 at .
115 Having regard to Mr Parker’s status as a person who has never previously offended but one in respect of whose conduct a significant penalty, having regard to the principles of general deterrence must nonetheless be imposed, I will set the amount of his suspended pecuniary penalty in the sum of $5,000.00.
116 Unlike Mr Parker the Union has a gross history of prior offending against industrial legislation. The observations of Katzmann J in the WGC Cranes Case as I have cited above at - permit of no other conclusion. Its scale and financial resources are not in dispute.
117 However while the Union necessarily is to be dealt with in that light the facts in this proceeding requires its conduct to be viewed as having distinguishing features.
118 My findings in respect to the particular circumstances of the Union’s derivative offending as is material to this specific case and to its subsequent conduct are set out above at -. I need not reiterate them. To that I add only that the Union’s agreement not to contest this hearing may have saved some time but the facts regarding Mr Parker’s conduct were hardly ever in doubt. The Union’s derivative liability arose as a matter of law and I do not take its decision to proceed on the basis of admissions and agreed statement of facts to be materially mitigating.
119 I turn now to what take to be the most significant of the distinguishing factors involved in this proceeding, not ignoring that I have set out in detail my findings and the legal principles applying earlier which I must also put into the mix.
120 I am satisfied that the personal conduct of Mr Tzimas, the Union’s employed organiser was, in this instance, entirely proper.
121 I am satisfied that the Union, in the sense of its senior leadership, gave no encouragement to and was not involved in Mr Parker’s ultimately ill-advised and unlawful conduct as is, by force of law, to be attributed to it.
122 However, as Mr Doyle accepts, the penalties the Court should impose must take into account that the Union failed to ensure that its delegates were properly trained and complied with the law. I proceed on that basis but additionally recognise that framing the Union’s responsibility in that manner risks underplaying its responsibility.
123 In my reasons for imposing a particular pecuniary penalty on Mr Parker I indicated that I did not discount that his actions on 11 July 2019 might have been contributed to his becoming acculturated to working (albeit unpaid and in a minor capacity) as a representative of a Union with a history of wilful recidivism and asserted impunity from obedience to the law.
124 On the balance of probabilities I am prepared to infer that the Union’s historic willingness to stand by its officials whatever the lawfulness of their conduct did play a part in Mr Parker’s precipitated and unlawful decision making. That suggests I should approach penalty setting as the ABCC submits I ought—with the starting point being that it should be in the high range.
125 However the ABCC’s submissions were pressed on the premise that the Court should give very little if any credit to the circumstance that the Union had initiated a program of training for its officials, including its delegates and HSRs, with the object of ensuring that safety issues are not the subject of unlawful industrial action. The ABCC advanced that submission on the basis that there was no evidence before the Court that such training had begun to have been provided. It suggested that I should not accept that any such training had commenced.
126 It has since been established that that proposition cannot be sustained.
127 Whatever the Union’s motivation might be, the simple fact is that there is evidence before the Court to the effect that the Union has firmly committed itself to provide training to its officials designed to change, at least in respect of safety issues, the cultural and normative conduct of the past routine contravening behaviours of its officers and employees. It has commenced rolling out that programme. That must be taken into account as a factor in mitigation in the penalties to be imposed.
128 To punish the Union on the basis that its culture will persist as it has in the past when those facts have been established by the evidence before this Court would be an error. Doing so would be to punish the Union for its history of past conduct without having regard to the actual circumstances prevailing in the present. It would give no credit to the Union’s commitment to change for the better (at least in so far as safety concerns are involved) the behaviour of its elected and appointed officials.
129 However I decline, even in those circumstances, to impose only a minimal penalty. The Union has a long history of disregard for its obligations under the BCIIP Act. The proof of the process the Union has commenced is still in the pudding. What it has committed itself to do by way of training represents a welcome change but the longer term outcome is yet unproven. This Court, in setting penalties, should recognise what the Union has done to date and thereby encourage further steps along that path but it must also not be naive about the difficulties involved in changing the culture of an organisation, even limited only to work and safety issues, with a prior history of contempt for industrial norms. There remains a significant case for the imposition of a penalty sufficient to deter repetition even if it is accepted that such repetition is not presently intended and steps have been taken to avoid it.
130 In my view when those considerations are taken into account with the entirely proper conduct of Mr Tzimas an appropriate synthesis calls for a penalty within, but at the lower end of, the mid-range. I impose a penalty of $85,000.00.
131 The parties are agreed that a declaration in the terms sought by the ABCC should be made as follows:
1. The First Respondent (Mr Parker), being an agent of the Second Respondent (the Union) and being a member of the Union who performs the function of dealing with an employer on behalf of the members of the Union, and acting in those capacities, contravened s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) on 11 July 2019 by organising unlawful industrial action at the Melbourne Metro Tunnel Project on Flinders Lane, Melbourne (Parker Contravention).
2. The Union is taken to also have contravened s 46 of the BCIIP Act on 11 July 2019 at the Melbourne Metro Tunnel Project by operation of ss 94(1)(a), 94(2), 95(1)(b), 95(1)(d) and 95(3) of the BCIIP Act (Union Contravention).
132 It is well established that the Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth). However, both because a declaration is a discretionary remedy and because by its nature the purpose of a declaration is to state legal rights it is a foundational principle that the consent of parties that a declaration ought to be made cannot require that outcome.
133 That it generally would be an inappropriate use of a declaration merely to record the fact of a contravention of a civil penalty provision, without more, has long been recognised. Thus in BMW Australia Ltd v Australian Competition and Consumer Commission  FCAFC 167 Gray, Goldberg and Weinberg JJ observed at :
…. the primary judge does not appear to have considered the exercise of his discretion in relation to the other orders. He expressed the view that the mere fact that the appellant’s vehicle jack warning did not comply with a valid prescribed safety standard made it appropriate to make the declaration sought and to grant the injunction sought. Both a declaration and an injunction are discretionary remedies. In Australian Competition & Consumer Commission v Francis  FCA 487 at  – , Gray J expressed his views about the practice, which appears to have become established, of making declarations merely recording the fact of a contravention of a provision of the Trade Practices Act. If it were considered to have been appropriate to make a declaration in the present case, the form of the declaration that was sought and made could only be described as a ‘bad precedent’. See Rural Press Ltd v Australian Competition and Consumer Commission  HCA 75, (2003) 203 ALR 217 at  – . At the very least, such a declaration should disclose the basis on which the vehicle jack and the owner’s manual supplied failed to comply with the prescribed consumer product safety standard relating to vehicle jacks. The declaration made by the primary judge was silent on that issue.
134 The terms of the declarations jointly sought by the parties in this case are of the nature of those that their Honours characterised as a “bad precedent”.
135 Those proposed in this instance similarly neither precisely (or at all) identify the actual conduct of Mr Parker that contravened the provisions of s 46 of the BCIIP Act nor do they contain any reference to how and why his relevant conduct involved a contravention of that provision.
136 Moreover I am entirely sceptical of the utility of the Court making the declarations the parties have sought.
137 Such declarations devoid of all contextual foundations as have been proposed will not:
(a) Serve the public interest in defining and publicising the type of conduct that constitutes a contravention of the BCIIP Act;
(b) Assist the ABCC in the future in carrying out the duties conferred on it; or
(c) Inform the public and union members about what was involved in the contravening conduct.
They will add nothing not apparent in the Court’s published reasons and orders.
138 Notwithstanding it having been the parties common position that declarations be made in the terms proposed I decline, in the exercise of my discretion, to adopt that course.
139 The parties have agreed privately that the Union should pay the ABCC’s costs in the sum of $10,000.00. I will order accordingly.
140 The Union submitted that that obligation should be taken into account in the setting of penalties as against the Union. As is evident from my reasoning I have not taken that course. In my view there is no sufficient nexus demonstrated as would justify that path of reasoning.
141 However there is also an outstanding question of costs arising as a result of the abandoned hearing on penalties of 26 May 2021 in which, over the objection of the Respondents, I granted an adjournment permitting the ABCC to give consideration to their position having regard to their written submissions on penalty having been advanced on the basis that penalty should be set in the higher ranges having regard to admissions about “pretext” which on the hearing its counsel conceded were not made.
142 I earlier have expressed regret that the Court was not greatly helped by the revised submissions advanced by the ABCC but, even putting that entirely to the side, the Court accepts that the Respondents must be entitled to their costs thrown away by reason of the adjournment even assuming that costs in this proceeding are governed by the provisions of s 570 of the Fair Work Act 2009 (Cth). Those costs were unreasonably incurred. They were advanced on a premise which self-evidently was unavailable to the ABCC. I will order that the Applicant pay the Respondents’ costs thrown away by reason of the adjournment of the hearing on 26 May 2021 be paid as agreed, or in default of agreement as may be taxed.