FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951
ORDERS
DATE OF ORDER: |
THE COURT DECLARES THAT:
3 April 2019
1. The Third Respondent (Mr Tadic) contravened s 345 of the Fair Work Act 2009 (Cth) (the FW Act) on 3 April 2019 at the Adelaide Airport Redevelopment Terminal 1 Expansion Project on James Schoefield Drive (the Site) by recklessly making a false or misleading statement to a Watpac Pty Ltd (Watpac) representative that “We don't have to show these to you” in response to a request by that representative that he produce his entry permit when he knew that it was likely that it was correct that Watpac was entitled to inspect, on request, entry permits prior to, or during, the exercise of a “State or Territory OHS right”.
2. The First Respondent (the CFMMEU) contravened s 345 of the FW Act on 3 April 2019, pursuant to ss 363 of the FW Act, by the conduct of Mr Tadic which is the subject of the first Declaration.
3. The Second Respondent (Mr McManus) contravened s 345 of the FW Act on 3 April 2019, by being involved, within the meaning of s 550 of the FW Act, in the conduct of Mr Tadic which is the subject of the first Declaration.
4. The CFMMEU contravened s 345 of the FW Act on 3 April 2019, pursuant to s 363 of the FW Act, by the conduct of Mr McManus which is the subject of the third Declaration.
5. The Fourth Respondent (Mr Sloane) contravened s 345 of the FW Act on 3 April 2019, by being involved, within the meaning of s 550 of the FW Act, in the conduct of Mr Tadic which is the subject of the first Declaration.
6. The CFMMEU contravened s 345 of the FW Act on 3 April 2019, pursuant to s 363 of the FW Act, by the conduct of Mr Sloane which is the subject of the fifth Declaration.
7. Mr McManus contravened s 497 of the FW Act on 3 April 2019 at the Site by failing to produce his entry permit when requested to do so by a representative of Watpac.
8. The CFMMEU contravened s 497 of the FW Act on 3 April 2019, pursuant to s 793 of the FW Act, by the conduct of Mr McManus which is the subject of the seventh Declaration.
9. Mr Tadic contravened s 497 of the FW Act on 3 April 2019, by being involved, within the meaning of s 550 of the FW Act, in the conduct of Mr McManus which is the subject of the seventh Declaration.
10. The CFMMEU contravened s 497 of the FW Act on 3 April 2019, pursuant to ss 793 and 550 of the FW Act, by the conduct of Mr Tadic which is the subject of the ninth Declaration.
11. Mr Sloane contravened s 497 of the FW Act on 3 April 2019, by being involved, within the meaning of s 550 of the FW Act, in the conduct of Mr McManus which is the subject of the seventh Declaration.
12. The CFMMEU contravened s 497 of the FW Act on 3 April 2019, pursuant to ss 793 and 550 of the FW Act, by the conduct of Mr Sloane which is the subject of the 11th Declaration.
13. Mr McManus contravened s 500 of the FW Act on 3 April 2019 at the Site while exercising rights in accordance with Pt 3-4 of the FW Act by acting in an improper manner by failing to produce his entry permit when requested to do so by a Watpac representative.
14. The CFMMEU contravened s 500 of the FW Act on 3 April 2019, pursuant to s 793 of the FW Act, by the conduct of Mr McManus which is the subject of the 13th Declaration.
15. Mr Tadic contravened s 500 of the FW Act on 3 April 2019, by being involved, within the meaning of s 550 of the FW Act, in the conduct of Mr McManus which is the subject of the 13th Declaration.
16. The CFMMEU contravened s 500 of the FW Act on 3 April 2019, pursuant to ss 793 and 550 of the FW Act, by the conduct of Mr Tadic which is the subject of the 15th Declaration.
17. Mr Sloane contravened s 500 of the FW Act on 3 April 2019, by being involved, within the meaning of s 550 of the FW Act, in the conduct of Mr McManus which is the subject of the 13th Declaration.
18. The CFMMEU contravened s 500 of the FW Act on 3 April 2019, pursuant to ss 793 and 550 of the FW Act, by the conduct of Mr Sloane which is the subject of the 17th Declaration.
23 May 2019
19. The Sixth Respondent (Mr Fellowes) contravened s 503 of the FW Act at the Site on 23 May 2019 at the Site by stating “I don't have to show it to you” in response to a request by a Watpac representative to see his entry permits and right of entry notice, being reckless as to whether he gave the impression to that representative that he was authorised under Pt 3-4 of the FW Act to enter the site and exercise a State or Territory OHS right without producing his entry permit, when he was not so authorised.
20. The CFMMEU contravened s 503 of the FW Act on 23 May 2019, pursuant to s 793 of the FW Act, by the conduct of Mr Fellowes which is the subject of the 19th Declaration.
21. Mr Fellowes contravened s 500 of the FW Act at the Site on 23 May 2019 while exercising rights in accordance with Pt 3-4 of the FW Act by acting in an improper manner by refusing to comply with a request from Watpac representatives that he attend the Site office, when the purpose of that requirement was so that Watpac could record who was on the Site for the purpose of any emergency and assess who required an escort around Site so as to avoid hazards and injury.
22. The CFMMEU contravened s 500 of the FW Act on 23 May 2019, pursuant to s 793 of the FW Act, by the conduct of Mr Fellowes which is the subject of the 21st Declaration.
24 May 2019
23. Mr McManus contravened s 500 of the FW Act at the Site on 24 May 2019 while exercising rights in accordance with Pt 3-4 of the FW Act by acting in an improper manner by failing to comply with a requirement displayed on a sign outside the Site which required visitors to report to the Site office, when the purpose of that requirement was so that Watpac could record who was on Site for the purpose of any emergency and assess who required an escort around the Site so as to avoid hazards and injury.
24. The CFMMEU contravened s 500 of the FW Act on 24 May 2019 by the conduct of Mr McManus which is the subject of the 23rd Declaration.
25. Mr Fellowes contravened s 500 of the FW Act at the Site on 24 May 2019 while exercising rights in accordance with Pt 3-4 of the FW Act by acting in an improper manner by failing to comply with a requirement displayed on a sign outside the Site which required visitors to report to the Site office, when the purpose of that requirement was so that Watpac could record who was on Site for the purpose of any emergency and assess who required an escort around the Site so as to avoid hazards and injury.
26. The CFMMEU contravened s 500 of the FW Act on 24 May 2019 by the conduct of Mr Fellowes which is the subject of the 25th Declaration.
27. Mr McManus contravened s 500 of the FW Act at the Site on 24 May 2019 while exercising rights in accordance with Pt 3-4 of the FW Act by acting in an improper manner by failing to comply with the requirement of a Watpac representative that he attend the Site office and sign in when the purpose of that requirement was so that Watpac could record who was on the Site for the purpose of any emergency and assess who required an escort around Site so as to avoid hazards and injury.
28. The CFMMEU contravened s 500 of the FW Act on 24 May 2019 by the conduct of Mr McManus which is the subject of the 27th Declaration.
29. Mr Fellowes contravened s 500 of the FW Act at the Site on 24 May 2019 while exercising rights in accordance with Pt 3-4 of the FW Act by acting in an improper manner by failing to comply with the requirement of a Watpac representative that he attend the Site office and sign in when the purpose of that requirement was so that Watpac could record who was on the Site for the purpose of any emergency and assess who required an escort around Site so as to avoid hazards and injury.
30. The CFMMEU contravened s 500 of the FW Act on 24 May 2019 by the conduct of Mr Fellowes which is the subject of the 29th Declaration.
20 June 2019
31. The Ninth Respondent (Mr Savage) contravened s 500 of the FW Act at the Site on 20 June 2019 while exercising rights in accordance with Pt 3-4 of the FW Act by acting in an improper manner by repeatedly swearing at, and speaking in an aggressive and bullying manner towards, a Watpac representative.
32. The CFMMEU contravened s 500 of the FW Act on 20 June 2019, pursuant to s 793 of the FW Act, by the conduct of Mr Savage which is the subject of the 31st Declaration.
33. The Tenth Respondent (Mr Albert) contravened s 500 of the FW Act at the Site on 20 June 2019 while exercising rights in accordance with Pt 3-4 of the FW Act by acting in an improper manner by repeatedly swearing at, and speaking in an aggressive and bullying manner towards, a Watpac representative.
34. The CFMMEU contravened s 500 of the FW Act on 20 June 2019, pursuant to s 793 of the FW Act, by the conduct of Albert which is the subject of the 33rd Declaration.
THE COURT ORDERS THAT:
3 April 2019
1. Mr Tadic pay a pecuniary penalty of $3,500 in respect of the contravention of s 345 on 3 April 2019 which is subject of the first Declaration.
2. The CFMMEU pay a pecuniary penalty of $35,000 in respect of the contravention of s 345 which is subject of the second Declaration.
3. Mr McManus pay a pecuniary penalty of $2,600 in respect of the contravention of s 345 on 3 April 2019 which is subject of the third Declaration.
4. The CFMMEU pay a pecuniary penalty of $24,000 in respect of the contravention of s 345 which is subject of the fourth Declaration.
5. Mr Sloane pay a pecuniary penalty of $3,250 in respect of the contravention of s 345 on 3 April 2019 which is subject of the fifth Declaration.
6. The CFMMEU pay a pecuniary penalty of $30,000 in respect of the contravention of s 345 which is subject of the sixth Declaration.
7. Mr McManus pay a pecuniary penalty of $2,200 in respect of the contravention of s 497 on 3 April 2019 which is subject of the seventh Declaration.
8. The CFMMEU pay a pecuniary penalty of $30,000 in respect of the contravention of s 497 which is subject of the eighth Declaration.
9. Mr Sloane pay a pecuniary penalty of $2,700 in respect of the contravention of s 497 on 3 April 2019 which is subject of the 11th Declaration.
10. The CFMMEU pay a pecuniary penalty of $27,500 in respect of the contravention of s 497 which is subject of the 12th Declaration.
23 May 2019
11. Mr Fellowes pay a pecuniary penalty of $1,800 in respect of the contravention of s 503 on 23 May 2019 which is subject of the 19th Declaration.
12. The CFMMEU pay a pecuniary penalty of $30,000 in respect of the contravention of s 503 which is subject of the 20th Declaration.
13. Mr Fellowes pay a pecuniary penalty of $2,200 in respect of the contravention of s 500 on 23 May 2019 which is subject of the 21st Declaration.
14. The CFMMEU pay a pecuniary penalty of $24,000 in respect of the contravention of s 500 which is subject of the 22nd Declaration.
24 May 2019
15. Mr McManus pay a pecuniary penalty of $2,500 in respect of the contravention of s 500 on 24 May 2019 which is subject of the 23rd Declaration.
16. The CFMMEU pay a pecuniary penalty of $30,000 in respect of the contravention of s 500 which is subject of the 24th Declaration.
17. Mr Fellowes pay a pecuniary penalty of $2,800 in respect of the contravention of s 500 on 24 May 2019 which is subject of the 25th Declaration.
18. The CFMMEU pay a pecuniary penalty of $28,000 in respect of the contravention of s 500 which is subject of the 26th Declaration.
19. Mr McManus pay a pecuniary penalty of $2,200 in respect of the contravention of s 500 on 24 May 2019 which is subject of the 27th Declaration.
20. The CFMMEU pay a pecuniary penalty of $27,000 in respect of the contravention of s 500 which is subject of the 28th Declaration.
21. Mr Fellowes pay a pecuniary penalty of $2,500 in respect of the contravention of s 500 on 24 May 2019 which is subject of the 29th Declaration.
22. The CFMMEU pay a pecuniary penalty of $25,000 in respect of the contravention of s 500 which is subject of the 30th Declaration.
20 June 2019
23. Mr Savage pay a pecuniary penalty of $4,500 in respect of the contravention of s 500 on 20 June 2019 which is subject of the 31st Declaration.
24. The CFMMEU pay a pecuniary penalty of $37,500 in respect of the contravention of s 500 which is subject of the 32nd Declaration.
25. Mr Albert pay a pecuniary penalty of $5,000 in respect of the contravention of s 500 on 20 June 2019 which is subject of the 33rd Declaration.
26. The CFMMEU pay a pecuniary penalty of $42,500 in respect of the contravention of s 500 which is subject of the 34th Declaration.
General
27. Each of the penalties be paid to the Commonwealth within 28 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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WHITE J:
1 The Australian Building and Construction Commissioner (the ABCC) seeks relief in respect of contraventions by the respondents of provisions in the Fair Work Act 2009 (Cth) (the FW Act). The respondents admit that the ABCC is entitled to declarations with respect to the contraventions and accept that the Court should impose pecuniary penalties pursuant to s 546 of the FW Act. However, they challenge the ABCC’s characterisation of the contraventions and the amounts of the penalties which he seeks.
2 When the ABCC commenced the proceedings, he sought orders against the first respondent (CFMMEU) and nine of its organisers. He alleged contraventions of the FW Act by the organisers on six days in April, May and June 2019 at the construction site of the Terminal Redevelopment and Expansion Project at the Adelaide Airport.
3 The ABCC alleged a total of 72 contraventions by the organisers (only some of the organisers were alleged to be involved in each contravention) and that the CFMMEU had, by reason of the conduct of the organisers, also committed the same contraventions. This meant that the ABCC alleged a total of 144 contraventions.
4 The proceedings were listed for a nine day trial commencing on 15 June 2021. However, on 10 June 2021, the parties informed the Court that they had negotiated a compromise of the liability aspects of the proceedings and sought a penalty hearing only. Effect was given to the parties’ compromise by the ABCC discontinuing his proceedings against the fifth, seventh and eighth respondents (Messrs Rielly, Kirby and Travers), by the ABCC filing an Amended Originating Application and a Further Amended Statement of Claim (the FASC), by the remaining respondents each filing an Amended Defence in which they admitted the ABCC allegations, and by the parties providing a Statement of Agreed Facts (SOAF).
5 The individual respondents remaining in the proceedings are the second (Mr McManus), the third (Mr Tadic), the fourth (Mr Sloane), the sixth (Mr Fellowes), the ninth (Mr Savage) and the tenth (Mr Albert).
6 The ABCC now alleges a total of 17 contraventions by the six individual organisers (again, only some of the organisers were involved in each contravention) and that the CFMMEU also committed the same contraventions. The respondents admit those contraventions. The provisions in the FW Act which were contravened are ss 345, 497, 500 and 503.
The provisions which were contravened
7 Part 3-1 of the FW Act is concerned with “general protections”. Division 3 of Pt 3-1 establishes a number of workplace rights and, by a number of means, provides protection for the exercise of those rights. Section 345 is located in Div 3 of Part 3-1 and provides:
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
8 Part 3-4 of the FW Act establishes a regime by which officials of registered organisations who are holders of a permit issued by the Fair Work Commission (the FWC) may, for defined purposes, enter premises occupied by others. Division 3 of Pt 3-4 regulates the manner of exercise of rights of entry granted by the occupational health and safety legislation of the States and Territories. Section 497, which forms part of Div 3 in Pt 3-4, provides:
A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer.
Note: This section is a civil remedy provision (see Part 4-1).
9 Division 4 in Pt 3-4 proscribes certain conduct by permit holders in the exercise of rights of entry. Section 500 provides:
500 Permit holder must not hinder or obstruct
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.
Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).
10 Section 503 is in some respects an analogue of s 345. It provides:
503 Misrepresentations about things authorised by this Part
(1) A person must not take action:
(a) with the intention of giving the impression; or
(b) reckless as to whether the impression is given;
that the doing of a thing is authorised by this Part if it is not so authorised.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.
11 As the notes to these provisions indicate, each is a civil remedy provision.
12 Section 550 of the FW Act provides for accessorial liability:
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Provisions concerning the liability of the CFMMEU
13 The FW Act contains two provisions by which the actions and states of mind of the officers of a union may be taken to be that of the union itself.
14 Section 363, which is located in Div 7 of Pt 3-1, and is therefore relevant to the contraventions of s 345, provides (relevantly):
363 Actions of industrial associations
(1) For the purposes of this Part, each of the following is taken to be action of an industrial association:
(a) …
(b) action taken by an officer or agent of the industrial association acting in that capacity;
…
…
(3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:
(a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and
(b) that the person, or a person in the group, had that state of mind.
(4) Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).
15 Section 793, located in Pt 6-5, is directed to the liability of bodies corporate such as the CFMMEU. Section 793 provides (relevantly):
793 Liability of bodies corporate
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
…
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, 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.
…
16 Section 546 of the FW Act vests the Court with power to impose pecuniary penalties on those who contravene a civil remedy provision. It provides (relevantly):
(1) The Federal Court … may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
…
Determining amount of pecuniary penalty
(2) The pecuniary penalty must not be more than:
(a) if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or
(b) if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
Payment of penalty
(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.
…
17 A penalty unit is defined in s 4AA of the Crimes Act 1914 (Cth) and, at the time of the contravening conduct under consideration in this case, was $210 per unit. Accordingly, the maximum penalty which may be imposed for each contravention by the individual respondents is $12,600. The maximum penalty which may be imposed on the CFMMEU for each of its contraventions is $63,000.
Contraventions of s 497, 500 and 503 in context
18 Section 546 exists to facilitate the enforcement of provisions such as those contained in Pt 3-4 of the FW Act: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (The Agreed Penalties Case) at [16]. Accordingly, it is appropriate that the penalties imposed pursuant to it in the present case should take account of the place of ss 497, 500 and 503 in the statutory scheme.
19 I outlined the scheme of rights of entry established under the Work Health and Safety Act 2012 (SA) (the WHS Act) in Construction, Forestry, Maritime, Mining and Energy Union v Kyren Pty Ltd [2020] FCA 1356 (CFMMEU v Kyren) and discussed the nature and purpose of the rights given by Pt 3-4 of the FW Act in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 (The Lend Lease Case). It is convenient to repeat in these reasons some of what I said then.
20 Section 19 of the WHS Act imposes duties on persons conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers in the business or undertaking. The WHS Act contains a range of provisions directed to the enforcement of that obligation.
21 By s 117(1) of the WHS Act, a “WHS entry permit holder” may enter a workplace for the purpose of inquiring into a suspected contravention of that Act which relates to, or affects, a “relevant worker”. By s 120, a WHS entry permit holder entitled under s 117 to enter a workplace to inquire into a suspected contravention of the Act, may also enter for the purpose of inspecting or making copies of employee records or other documents which are directly relevant to a suspected contravention of that Act.
22 The term “WHS entry permit holder” is defined in s 4 to mean a person who holds a “WHS entry permit”, that is, a permit issued under Pt 7 of that Act.
23 The term “relevant worker” is defined in s 116 of the WHS Act:
relevant worker, in relation to a workplace, means a worker:
(a) who is a member, or eligible to be a member, of a relevant union; and
(b) whose industrial interests the relevant union is entitled to represent; and
(c) who works at that workplace.
24 While at the workplace, the WHS entry permit holder may engage in a number of defined activities, including inspecting any work system, plant or structure relevant to the suspected contravention (s 118(1)(a)), consulting with the relevant worker in relation to the suspected contravention (s 118(1)(b)), consulting with the relevant person conducting a business or undertaking about the suspected contravention (s 118(1)(c)), and warning persons whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to their health or safety emanating from an immediate or imminent exposure to that risk (s 118(1)(e)).
25 There are conditions to rights of entry bestowed by s 117. These include a requirement that the permit holder, as soon as reasonably practicable after entering a workplace, give notice of the entry and of the suspected contravention, in accordance with the Regulations, to the relevant person conducting the business or undertaking and to a person with management or control of the workplace (s 119(1)).
26 As already noted, Div 3 in Pt 3-4 of the FW Act also regulates the right of entry granted by provisions such as s 117 of the WHS Act. Relevantly for present purposes, s 494(1) of the FW Act has the effect that, in a wide range of circumstances, an official of an organisation must not exercise a right of the kind bestowed by s 117 of the WHS Act unless the official holds an entry permit issued by the FWC under Div 6 of Pt 3-4. Section 497, set out earlier in these reasons, provides that the permit holder must not exercise such a right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer. Section 499 provides that a permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.
27 Both the WHS Act and the FW Act recognise the important role of unions in achieving the objects of the WHS Act. Thus, the objects of the WHS Act (s 3) include:
(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:
…
(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and
…
28 Section 132 of the WHS Act reflects this intention by providing that an issuing authority must, when considering the issue of a WHS entry permit, take into account “the object of allowing union right of entry to workplaces for work health and safety purposes”.
29 Turning to the FW Act, Div 2 of Pt 3-4 of the FW Act grants permit holders rights of entry of two kinds: entry for the purposes of investigating contraventions of the FW Act itself and of a limited class of industrial instruments (ss 483A(1); 483D(1)); and entry to hold discussions with employees performing work on the premises.
30 Section 480 identifies the object of Pt 3-4. It specifies:
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.
31 Absent these legislative provisions, union officials would have no right to enter the premises of others without the agreement of the occupier. Any unauthorised entry would therefore be unlawful and may amount to a criminal offence. Thus, in Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 at [14], the Full Court said:
A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry.
32 It is evident that, in granting rights of entry under the FW Act, the legislature has sought to balance the interests of occupiers of premises, employers, unions and employees: Maritime Union at [14]-[15]. Unions and employees have an interest in union officials being able to enter premises in order to ensure compliance with industrial legislation and instruments. The ability of permit holders to enter premises is an important aid to effective communication between employees and union officials and to the representation by unions of the industrial interests of employees. Occupiers and employers, on the other hand, have an interest in being able to conduct their business activities without disruption or inconvenience.
33 A number of provisions in Pt 3-4 of the FW Act are directed to achieving a balance of these interests. First, Pt 3-4 confines the persons who may exercise rights of entry. Those rights are not available to any person or, for that matter, to any union official. They are available only to those union officials who have been issued a permit by the Fair Work Commission (the FWC). Before issuing a permit, the FWC must be satisfied that the official is a “fit and proper person” (s 512). The determination of whether the official is such a person takes account of matters bearing upon the official’s character and history of compliance with industrial legislation and whether the official has had appropriate training in the rights and responsibilities of a permit holder (s 513).
34 Secondly, Pt 3-4 regulates the time and manner in which the rights it grants may be exercised. Permit holders cannot enter without written notice given at least 24 hours in advance (ss 487 and 518), thereby giving the occupier or employer, as the case may be, some forewarning of the proposed entry and of its purpose. The time at which permit holders may enter premises and at which they may hold discussions with employees are regulated (ss 490 and 492), as are the places at which they may meet the employees (s 492).
35 The exercise of rights in accordance with Pt 3-4 by permit holders is protected by provisions making it unlawful for a person to refuse or delay unduly their entry onto the premises (s 501) and which make it unlawful for a person to hinder or obstruct intentionally a permit holder exercising such rights (s 502).
36 Section 500 is part of this scheme of balancing of interests because it imposes a corresponding obligation on permit holders exercising, or seeking to exercise, rights in accordance with Pt 3-4 not to hinder or obstruct intentionally any person or otherwise to act in an improper manner.
37 Division 3 in Pt 3-4 is another part of the scheme for the balancing of the rights and interests of employees, unions and occupiers of premises. It does so by stipulating that officials of registered organisations must not exercise a State or Territory OHS right to inspect or otherwise access an employee record of an employee unless they have given 24 hours written notice of their intention to do so (s 495(1)) and, relevantly for present purposes, must not exercise a State or Territory OHS right unless they produce their entry permits for inspection when requested to do so by the occupier (s 497). Division 3 of Pt 3-4 imposes other prohibitions which it is not necessary to mention presently.
38 The requirement for 24 hours written notice applies only when a permit holder wishes to inspect or access employee records. A permit holder wishing to exercise a State or Territory OHS right does not have to give such notice before entering a workplace for the purpose of enquiring into a suspected contravention of the WHS Act relating to or affecting a relevant worker, providing that the permit holder reasonably suspects before entering the workplace that the contravention has occurred or is continuing and that it involves a risk to the health or safety of a relevant worker. There are other requirements to the exercise of an entry permit under the WHS Act but these need not be mentioned presently.
39 An evident purpose of s 497 is to provide a means of assurance for occupiers that a person who has entered, or who wishes to enter, their premises is a person authorised under the legislation to do so. It also provides the occupier with the means of being informed of any conditions attaching to the person’s entry permit. This information will usually be of assistance to an occupier because the possession of an entry permit conveys that the entrant is a person who has had training about the rights and responsibilities of permit holders and that the FWC has, amongst other things, satisfied itself that the entrant is a fit and proper person to hold the entry permit (ss 512 and 513).
40 Section 503 is another element in the scheme of the balancing of rights and interests in relation to rights of entry. Its evident purpose is to prevent persons being misled about the conduct which Pt 3-4 authorises: Australian Building and Construction Commissioner v Gava [2018] FCA 1480 at [27]. As also noted in Gava at [27], s 503 reflects a legislative concern that the scheme of rights established by Pt 3-4 and the clothing of persons with the ability to exercise those rights, should not be used as a guise for conduct which the Part does not authorise. The making of misrepresentations as to what is authorised by the Part is proscribed, but the operation of s 503(1) is not limited to misrepresentations in the commonly understood sense of that term. It extends to any action taken with the intention of “giving the impression”, or in which the person is reckless as to the giving of the “impression”, that a “thing” is authorised by Pt 3-4 when it is not.
41 Section 503 does not require that the action taken with the intention of giving a misleading impression, or with recklessness as to whether that impression be given, succeeds in doing so. The proscription in s 503 does not turn on the effect produced by the action, but on the state of mind with which the action is taken: Gava at [31]. However, evidence that the recipient was influenced to act in accordance with the representation may make the contravention more serious: cf Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at [58].
42 In 2019, Watpac Constructions Pty Ltd (Watpac) was the head contractor for the construction project at Adelaide Airport known as the “Redevelopment Terminal One Expansion Project” (the Site). It was the “occupier” of the Site for the purposes of Pt 3-4 of the FW Act and “the person conducting the business or undertaking” for the purposes of s 5 of the WHS Act. Watpac’s own personnel on the Site included:
(a) Alistair Crosby, the Construction Manager;
(b) Robert Kamminga, the Site Manager;
(c) Terry Dixon, the State Safety Manager;
(d) Rod Pridham, the Site Safety Advisor;
(e) Dean Ceranic, a foreman; and
(f) Theo Ostrozny.
43 At all material times, the CFMMEU was an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and, by reason of being so registered, a body corporate – see s 27. It was also an “industrial association” within the meaning that term in s 12 of the FW Act.
44 Each of Messrs McManus, Fellowes, Savage and Albert was, at material times, an “officer” of the CFMMEU for the purposes of ss 363 and 793 of the FW Act, a permit holder within the meaning of s 12 of the FW Act and a WHS entry permit holder within the meaning of s 4 of the WHS Act. Both Mr Tadic and Mr Sloane were also “officers” of the CFMMEU at material times but neither was a permit holder within the meaning of s 12 of the FW Act nor a WHS entry permit holder within the meaning of s 4 of the WHS Act. All of the individual respondents accept that, in relation to the allegations made against them in the proceedings, they were acting in their capacity, and within the scope of their authority, as officers of the CFMMEU. The CFMMEU also accepts that this was so in each case.
The contraventions on 3 April 2019
45 The ABCC alleges contraventions of ss 497, 345 and 500 of the FW Act on 3 April 2019.
46 On the basis of the admissions in the Amended Defences and of the SOAF, I make the following findings.
47 Messrs Tadic, Sloane and McManus went to the Site at 11.40 am on 3 April 2019. Mr Kamminga invited them to his office. Mr Tadic told Mr Kamminga that there were concerns about men working at heights and, in particular, about them not being properly harnessed. Mr Kamminga said that, if there was a safety issue, he would address it but would investigate the issue first. Mr Tadic then said that they were concerned about the safety of work being performed on an elevated platform parked on timber blocks. He also said that he was concerned about the adequacy of the access lighting, especially as it was dark when most workers started each day. Mr Tadic told Mr Kamminga that he, Mr Sloane and Mr McManus wanted to go on Site to inspect the safety issues which he (Mr Tadic) had raised.
48 Mr Kamminga then said “I will need to see your permits and ID”. The permits to which Mr Kamminga referred were entry permits issued under the FW Act and WHS Act.
49 Mr Tadic responded “we don’t have to show these to you” (the Tadic Permit Representation). Mr Kamminga repeated his request, to which Mr Tadic responded:
We don’t have them and we will be going on site anyway.
50 During the conversations just summarised, Mr Sloane and Mr McManus grunted and nodded in agreement.
51 As previously indicated, neither Mr Tadic nor Mr Sloane had an entry permit which could be produced. Mr McManus did have both permits but he did not produce them.
52 Mr Kamminga then permitted each of Mr Tadic, Mr Sloane and Mr McManus to enter the Site but on condition that they sign the Site Visitor Register and remain escorted at all times. Mr Kamminga, Mr Dixon and Mr Pridham did escort them as they entered the Site.
53 While on the Site, Mr Tadic, Mr Sloane and Mr McManus inspected the elevated working platform, the level of lighting in a particular area, harness points and the work which was being carried out at heights. At each place, the group engaged in discussions about safe work practices that could be adopted. The three organisers left the Site at about 12.10 pm.
The contraventions of s 345 on 3 April 2019
54 The respondents admit that Watpac had been entitled, pursuant to s 497, to the benefit (within the meaning of s 341(1)(a) of the FW Act) of inspecting a permit holder’s entry permit prior to, or during, a permit holder exercising a “State or Territory OHS right” and therefore that Watpac had a “workplace right” to which that provision referred.
55 Mr Tadic admits that he knew it was likely to be correct that Watpac was entitled to inspect, on request, entry permits prior to or during the exercise of a State or Territory OHS right.
56 In these circumstances, Mr Tadic recklessly made a false or misleading representation to Mr Kamminga about a workplace right of Watpac, that is, the representation that Watpac was not entitled to the benefit of inspecting entry permits prior to or during the exercise of the “State or Territory OHS right”. This was a contravention of s 345 of the FW Act.
57 Each of Mr Sloane and Mr McManus admit that, not only had he not taken steps to disassociate himself from the Tadic Permit Representation, he had nodded and grunted approval when Mr Tadic made that Representation. Each admits accordingly that he had been directly or indirectly knowingly concerned in Mr Tadic’s contravention of s 345, for the purposes of s 550 of the FW Act, and had therefore contravened that provision himself.
The contraventions of s 497 on 3 April 2019
58 Mr McManus’ entry on the Site on 3 April 2019 was in the exercise of his “State or Territory OHS rights”. His failure to produce his entry permit when requested to do so by Mr Kamminga was a contravention of s 497 of the FW Act.
59 Each of Mr Tadic and Mr Sloane admit that he knew that:
(i) Mr McManus was a permit holder within the meaning of s 12 of the FW Act and a “WHS entry permit holder” within the meaning of s 4 of the WHS Act;
(ii) Mr Kamminga had requested Mr McManus to produce his WHS entry permit;
(iii) Mr McManus had failed to produce his WHS entry permit when requested to do so; and
(iv) Mr McManus had then exercised his “State or Territory OHS right” by entering the Site to inspect the safety issues which had been raised with Mr Kamminga.
60 Each of Mr Tadic and Mr Sloane also admit that he was present at all times during Mr McManus’ contravention of s 497. Mr Tadic admits that he had been actively involved, within the meaning of s 550 of the FW Act, in Mr McManus’ failure to produce his entry permit. Mr Sloane admits that he had taken no steps to disassociate himself from the conduct of Mr McManus or the statements of Mr Tadic. Each admits that he had, for the purposes of s 550(2)(c) of the FW Act, been directly or indirectly knowingly concerned in Mr McManus’ contravention of s 497 and had therefore also contravened s 497.
The contraventions of s 500 on 3 April 2019
61 The ABCC alleges, and Mr McManus admits that, by reason of his contravention of s 497 of the FW Act, he had acted “in an improper manner” while exercising rights in accordance with Pt 3-4 of the FW Act. This was a contravention of s 500.
62 Each of Mr Tadic and Mr Sloane admits that he had been directly or indirectly knowingly concerned in Mr McManus’ improper conduct while exercising rights in accordance with Pt 3-4 of the FW Act on 3 April 2019 and had therefore also contravened s 500.
The contraventions by the CFMMEU on 3 April 2019
63 With respect to the contraventions of the CFMMEU constituted by the conduct of Messrs McManus, Tadic and Sloane, the ABCC relies upon ss 363 and 793 of the FW Act. The CFMMEU admits that, by reason of s 363(1), the conduct of each of Mr Tadic, Mr Sloane and Mr McManus in relation to the Tadic Permit Representation is taken to be its conduct and that, by reason of s 793(1), the conduct of each of the three organisers in contravention of ss 497 and 500 is also taken to be its conduct.
64 The CFMMEU also admits, that, by the operation of s 363(3) and s 793(2) respectively, it knew of the matters constituting the contraventions of Messrs McManus, Sloane and Tadic and accordingly that, pursuant to s 550 of the FW Act, it had been knowingly concerned in the conduct of each Messrs McManus, Tadic and Sloane on 3 April 2019 and therefore “involved in” their contraventions for the purposes of s 550.
Summary of contraventions on 3 April 2019
65 On this basis, I am satisfied that Mr Tadic contravened s 345 of the FW Act on 3 April 2019 by recklessly making a false or misleading statement to Mr Kamminga that “we don’t have to show these to you” when requested to produce entry permits; that each of Mr McManus and Mr Sloane was knowingly involved in Mr Tadic’s contravention of s 345; that the CFMMEU contravened s 345 of the FW Act by reason of the contraventions of each of Mr McManus, Mr Tadic and Mr Sloane; that Mr McManus contravened s 497 of the FW Act by refusing to produce his entry permit; that by reason of s 550 of the FW Act, each of Mr Tadic and Mr Sloane also contravened s 497 of the FW Act; that the CFMMEU contravened s 497 of the FW Act; that Mr McManus contravened s 500 of the FW Act by acting in an improper manner while exercising rights in accordance with Pt 3-4 of the FW Act by failing to produce his entry permit when requested to do so by Mr Kamminga; that each of Mr Tadic and Mr Sloane was knowingly involved in that contravention; and that, by reason of ss 793 and 550 of the FW Act, the CFMMEU had also contravened s 500 by the conduct of each of Mr McManus, Mr Tadic and Mr Sloane.
66 Mr Fellowes attended the Site at about 2 pm on 23 May 2019. The ABCC alleges, and Mr Fellowes admits, that he contravened both ss 500 and 503 of the FW Act.
67 On his arrival, Mr Fellowes was directed by Mr Ceranic and Mr Ostrozny to go to the Site office, but he refused to do so. He admits that his conduct in refusing to go to the Site office when directed to do so by Mr Ceranic and Mr Ostrozny constituted improper conduct, and therefore a contravention of s 500 of the FW Act.
68 Instead of going to the Site office, Mr Fellowes moved to the roof of the Site. At some time after 2.05 pm, Mr Dixon, Mr Kamminga, Mr Ceranic and Mr Ostrozny approached Mr Fellowes on the roof. Mr Kamminga told Mr Fellowes that he was the Site Manager and requested him to show his permits and right of entry notice. Mr Fellowes responded “I don’t have to show it to you” (the Fellowes Permit Representation). Mr Kamminga then repeated his request and, on this occasion, Mr Fellowes showed Mr Kamminga his entry permit issued under s 512 of the FW Act but not his WHS entry permit. Mr Kamminga repeated his request to see the WHS entry permit and Mr Fellowes then complied.
69 Mr Fellowes and the Watpac representatives then proceeded to the top of the staircase and the centre of the roof where Mr Fellowes questioned Mr Kamminga about safety systems to do with roofing. Mr Fellowes left the Site at approximately 3.10 pm.
70 Mr Fellowes admits that, by saying in response to Mr Kamminga’s request that he show his permits that “I don’t have to show them to you”, he had contravened s 503 of the FW Act. This was so because he had been reckless as to whether the impression given to Mr Kamminga was that he was in fact authorised to enter the Site and exercise a “State or Territory OHS right” without producing his entry permit.
71 The CFMMEU admits that, by reason of s 793 of the FW Act, it knew each of the matters constituting the contraventions of ss 500 and 503 by Mr Fellowes, that, pursuant to s 550 of the FW Act, it had been knowingly concerned in his conduct, and therefore that it too had contravened ss 500 and 503.
72 For these reasons, I am satisfied that each of Mr Fellowes and the CFMMEU contravened ss 503 and 500 by the conduct of Mr Fellowes at the Site on 23 May 2019.
73 The ABCC alleges contraventions of s 500 of the FW Act on 24 May 2019.
74 Mr Fellowes and Mr McManus attended the Site at about 9.25 am that day. They entered via the entry gate at the northern end of the Site, outside of which Watpac had signs stating:
(i) “Authorised personnel only”;
(ii) “All visitors and drivers must report to Site office”; and
(iii) “All personnel must be site inducted”.
75 Despite these requirements, neither Mr Fellowes nor Mr McManus reported to the Site office. Instead, they moved to the roof of the Site through the scaffold staircase.
76 Being alerted to their presence, Mr Kamminga went to the roof with Mr Dixon and Mr Pridham. He asked both to produce their entry permits (issued under s 512 of the FW Act) and right of entry notices provided under s 487. Mr Fellowes and Mr McManus produced their entry permits and an exchange to the following effect then occurred:
Fellowes: I will produce [the right of entry notice] once I’ve sorted the imminent risk at hand.
Kamminga: [Repeats his request for Mr Fellowes and Mr McManus to produce their right of entry notice].
Fellowes: No, not now.
Kamminga: [Tells Mr Fellowes that he and Mr McManus were required to go to the Site office to sign in and sort out the required right of entry notices].
Fellowes: No, we are sorting out these issues.
77 The group then walked across the roof and down to Level 3 of the Site where Mr Fellowes and Mr McManus pointed out safety issues ranging from secondary accesses to floors to general housekeeping matters. Mr Fellowes then went down to Level 2 of the Site and called Mr Dixon over to discuss safety concerns about an oxygen bottle.
78 The ABCC accepts that Mr Fellowes and Mr McManus had entered the Site exercising a “State or Territory OHS right” within the meaning of s 494(2) of the FW Act.
79 The ABCC alleges, and Mr Fellowes and Mr McManus admit, that by failing to comply with the direction stated on the gate sign that they go to the Site office, each had acted “in an improper manner” within the meaning s 500 of the FW Act while exercising rights in accordance with Pt 3-4 of that Act.
80 Each also admits that his refusal to comply with the requirement to sign the Visitor Register constituted conduct “in an improper manner” while exercising the same rights.
81 The CFMMEU admits that, by reason of s 793(2) and s 550 of the FW Act, it too had contravened s 500 by the two sets of conduct by Mr McManus and Mr Fellowes.
82 This means that there were eight contraventions of s 500 of the FW Act on 24 May 2019.
The contraventions on 20 June 2019
83 The ABCC alleges contraventions of s 500 of the FW Act on 20 June 2019.
84 Mr Savage and Mr Albert attended the Site at about 9.40 am on 20 June 2019. Upon their arrival, they presented to Mr Kamminga their FW Act entry permit and their WHS Act entry permit and provided him with a notice pursuant to s 117 of the WHS Act. It stated that they were on the Site “to investigate electrical switchboards, manual handling training and safety systems of work around high risk”.
85 Mr Savage and Mr Albert had also attended the Site on the previous day, 19 June 2019. The ABCC had initially alleged that conduct by them on that day had also contravened provisions in the FW Act, but he no longer pursues those allegations. For the present, it is sufficient to note that there had been discussions on 19 June 2019 between Mr Kamminga, on the one hand, and Mr Savage and Mr Albert, on the other, about Watpac’s evacuation plan in the event that it was necessary to carry an injured worker from Level 3 to ground level.
86 Shortly after the arrival of Mr Savage and Mr Albert on 20 June 2019, a conversation to the following effect occurred between Mr Albert and Mr Kamminga:
Albert: How did you go with the close out of issues from yesterday and holding the whole of site toolbox?
Kamminga: We did not need to hold a whole of site toolbox. We transferred all information through the Site Safety Committee Meeting which was followed by the Safety Representatives toolboxing their crew. This was in Watpac’s system and it was confirmed by SafeWork yesterday that this was compliant.
Albert: You can’t transfer responsibility under the Act. You are in breach.
87 Mr Kamminga then said that the group should go to see Mr Crosby (Watpac’s Construction Manager). Mr Savage replied with words to the effect “fuck this, this is going nowhere” and commenced walking to the Site office. Mr Albert said words to the effect “this is bullshit, let’s go and see Al [Crosby]”.
88 The group were joined by Mr Pridham and entered the Site office complex. Mr Kamminga asked Mr Savage and Mr Albert to follow him to a meeting room and said that he would get Mr Crosby to meet them once he [Crosby] had finished the meeting in which he was then engaged. In response, Mr Albert said to Mr Kamminga in an abrupt and aggressive tone, standing about one metre from him, words to the effect “fuck you, I’m not dealing with you”.
89 While waiting for Mr Crosby’s meeting to finish, Mr Savage and Mr Albert walked up and down outside Mr Crosby’s office saying loudly and aggressively that Mr Kamminga did not know what he was doing and that Watpac was in breach of “the Act”. Mr Albert said to Mr Kamminga “Rob, you’re a fucking waste of space, I’m not talking to you anymore”.
90 About five minutes later, Mr Savage and Mr Albert entered Mr Crosby’s office, along with Mr Kamminga. They told Mr Crosby that they wanted Watpac to have a toolbox meeting with the workers. Mr Albert, referring to Mr Kamminga, said words to the effect “he’s a piece of shit and hasn’t listened to us”. Mr Kamminga said words to the effect that Watpac had never agreed to hold a toolbox meeting the previous day, in response to which either Mr Savage or Mr Albert said words to the effect “you’re a fucking idiot” and “you don’t know what you’re fucking doing”. Mr Crosby then said words to the effect of “I will sort it out”, and he asked Mr Kamminga to leave. As Mr Kamminga left Mr Crosby’s office, Mr Savage said words to him to the effect of “go do your fucking colouring in books you cunt”.
91 In the meeting with Mr Crosby which followed, Mr Albert said that he wished to look at some safety concerns which he had about the Site and asked Mr Crosby to accompany him and Mr Savage onto the Site to look at those concerns. Mr Crosby refused and said that he would ask Mr Kamminga to go with the two men on the Site.
92 Shortly afterwards, Mr Kamminga, Mr Pridham, Mr Savage and Mr Albert walked around the Site during which Mr Savage and Mr Albert identified safety issues which they wanted Watpac to address.
93 Mr Savage and Mr Albert left the Site at approximately 11.30 am.
94 Mr Savage admits that his conduct while exercising his right of entry under Pt 3-4 of the FW Act in repeatedly swearing and speaking towards Mr Kamminga in an aggressive and intimidating manner was conduct “in an improper manner” for the purposes of s 500 of the FW Act and, accordingly, a contravention of that section.
95 Likewise, Mr Albert admits, that his conduct while exercising rights under Pt 3-4 of the FW Act in repeatedly swearing at, and speaking towards, Mr Kamminga in an aggressive and intimidating manner was conduct “in an improper manner” for the purposes of s 500 of the FW Act and, accordingly, a contravention of that section.
96 The CFMMEU admits that, by the operation of ss 793(2) and 550 of the FW Act, it had been knowingly concerned in the conduct of each of Mr Savage and Mr Albert on 20 June 2019 and therefore “involved in” their contraventions so as to have also contravened s 500.
97 This means that there were a total of four contraventions of s 500 on 20 June 2019.
98 The ABCC submitted that the Court should issue declarations as to each of the contraventions identified above. As noted, the respondents agreed that it is appropriate for the Court to make the declarations.
99 In Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 at [67]-[68], Gordon J said that the matters bearing upon the exercise of the discretion to grant or refuse a declaration include consideration of whether the declaration would have any utility, whether the proceeding involves a matter of public interest, whether the circumstances call for the Court’s disapproval of the contravening conduct; and whether the declarations contains appropriate and adequate particulars of how and why the conduct in question is a contravention of the relevant legislation. These considerations are pertinent presently.
100 A number of matters support the making of declarations proposed by the ABCC. Declarations are appropriate in cases like the present which proceed on the basis of formal admissions rather than on the basis of findings following a trial, as the declarations identify succinctly the conduct for which the Court is imposing the penalties: Australian Building and Construction Commissioner v Menon [2020] FCA 1418. They are also appropriate as a statement of the contraventions found established, given the ABCC’s abandonment of a large number of his allegations: cf Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at [95].
101 It is common for declarations to be made in circumstances of the present kind. In addition to providing a formal pronouncement by the Court of the nature of the contraventions found, they indicate the basis for the pecuniary penalties which are imposed and stand as a statement of the Court’s denunciation of the contravening conduct.
102 Accordingly, I will make the declarations proposed by the ABCC.
103 The principles concerning the fixing of penalties pursuant to s 546 of the FW Act are settled and do not require detailed review. I referred to several of them in Menon. The appeal by the CFMMEU against that decision (which did not involve any challenge to the statement of the principles) was dismissed: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7. It is sufficient to refer principally to two decisions of the Full Court: one delivered before the decision in Menon and one delivered afterwards.
104 In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155, the Full Court (Allsop CJ, White and O’Callaghan JJ) summarised the principles as follows:
[19] It is unnecessary to engage in any extended discussion of principle. Of particular significance is the recognition that deterrence (general and specific) is the principal and indeed only object of the imposition of a penalty – to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act … Retribution, denunciation and rehabilitation have no part to play.
[20] Relevant factors in the overall assessment of penalty were helpfully listed by French J in CSR. They have been adopted in many cases. For present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition.
[21] The seriousness of the contravention and other features of the conduct which may be seen as relevant to it … find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty …
[22] The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions … Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct.
(Citations omitted)
105 As these passages indicate, deterrence (general and specific) is the principal and indeed only object of the imposition of a penalty: The Agreed Penalties Case at [55]. Retribution, denunciation and rehabilitation have no part to play in the fixing of a penalty.
106 Counsel for the ABCC emphasised the purpose of deterrence in the imposition of civil penalties pursuant to s 546. He submitted (and I accept) that the penalties imposed on the individual respondents should be sufficiently high as to act as a specific deterrent to those individuals from engaging in further contravening conduct and to act as a general deterrent to other CFMMEU officers exercising rights of entry. Counsel also submitted that specific deterrence was particularly important in the case of the CFMMEU, given its long history of contraventions of provisions in the FW Act.
107 The Full Court in the The Non-Indemnification Personal Payment Case also spoke of the need for the Court to determine a penalty which is proportionate to the contravening conduct.
108 The role of proportionality was considered further by the Full Court of five in Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 384 ALR 75 (Pattinson v ABCC). That consideration was required by the ABCC’s contention that proportionality had no, or little, role to play in the fixing of penalties under s 546. That contention was rejected by all members of the Court (by Allsop CJ, White and Wigney JJ who constituted the majority, and by Besanko and Bromwich JJ who, in separate reasons, agreed with the majority position).
109 The decision in Pattinson v ABCC is the subject of a grant of special leave to appeal to the High Court. Both the ABCC and the respondents recognised, however, that I am bound, sitting as a single Judge of the Court, to follow the Full Court decision.
110 The reasons of the majority in Pattinson v ABCC include the following:
(a) the power vested in the Court by s 546(1) of the FW Act to order a person to pay a pecuniary penalty “that the Court considers is appropriate” requires the Court to determine and impose a penalty in the light of the object or purpose of the imposition of the penalty, namely, the promotion of the public interest in compliance with the provision of the statue in question by deterrence, specific and general, at [98];
(b) it is the deterring of contraventions of the kind before the Court to which the Court has regard in fixing the appropriate penalty, with reference to the maximum penalty set by the Parliament and with reference to the nature, character and full context of the contravening conduct, at [98], [100] (emphasis added);
(c) section 546 does not authorise the imposition of a penalty which is more than appropriate to deter a contravention of the kind before the Court, at [100], [104], [111];
(d) in determining the appropriate penalty, all the circumstances of the case are to be considered, including the personal circumstances of the contravenor, at [193]-[194]. Those circumstances include the contravenor’s history of prior contraventions as it may indicate the seriousness or gravity of the instant contravention by showing a “continuing attitude of disobedience to the law”, at [161]-[162], [193]-[194]. In this respect, the majority explained, at [194]:
… A demonstrated unwillingness to obey a law of Parliament can be seen to bear upon the seriousness of conduct that is a contravention of that law … The relevant question may be seen to be the demonstrated or inferred attitude or state of mind of the contravenor to the law in question. That will be assessed and taken into account along with, and not ignoring, all the other features of the contravening. …
(e) while the history of prior contraventions may assist in the proper characterisation of the instant contravention, the Court should not allow it to overwhelm the process so that the character of the instant contravention is changed into something which it is not. To do so is likely to lead to the imposition of a penalty for past conduct, at [193].
111 The majority considered that proportionality is inherent in the concept of an “appropriate penalty” under s 546, as the two concepts are intimately related, at [104]. Their Honours concluded:
[197] [T]he notion of proportionality inheres in the task of imposition of an appropriate penalty in aid of the object of deterrence. It is not a free-standing principle to be seen as based on retribution, as the principle of proportionality in sentencing for crime can be (at least historically). Rather, the relevance of the notion of proportionality inheres in the statutory task of the imposition of a reasonably appropriate penalty for the contravention before the court to deter such or like contraventions, and a rejection of the double imposition of penalty consequences.
…
[201] The assessment of what is an appropriate penalty is informed by a reasonable appreciation of all the circumstances that rationally go to an assessment of the gravity and seriousness of the contravention before the court, including (but not limited to) what can be drawn from past conduct as to the instant contravention, and that rationally go to an assessment of what is reasonably necessary, and thus appropriate, to deter such or like contravention in the future by the contravenor or by others …
112 Besanko and Bromwich JJ reached a similar conclusion, saying at [227(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 …
113 The ABCC accepted that s 556 of the FW Act, which precludes a person being penalised twice for the same conduct, is applicable to some of the contraventions. It provides:
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
…
114 In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; (2019) 272 FCR 290, at [18]-[19] and [26], the Full Court (Bromberg, Wheelahan and Snaden JJ) upheld the construction of s 556 by Jessup J in Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 at [40]:
The better view is that the reference to “particular conduct” in s 556 is to what the person actually did, with all its attributes and in its whole context. If that conduct gave rise to liability to penalty under two or more provisions, the section is, in my view, engaged ...
115 The parties were agreed that this is the approach to be applied presently. Indeed, the parties were agreed as to the contraventions for which penalties should be applied and for those which, in the application of s 556, penalties should not be imposed. In these circumstances, it is unnecessary to address the submission of the respondents concerning the application of the common law principles against double punishment (as to which see Stewart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; (2010) 185 FCR 308 at [82]-[83]).
116 The ABCC accepted, appropriately, that s 556 has the effect in the present case that penalties should not be imposed on Mr McManus, Mr Tadic and Mr Sloane in respect of their contraventions of s 500 on 3 April 2019 and that a penalty should not be imposed on Mr Tadic in respect of his accessorial contravention of s 497 on 3 April 2019. Likewise, penalties are not to be imposed on the CFMMEU for its corresponding contraventions.
Recklessness rather than actual knowledge
117 Counsel for the respondents noted that ss 345 and 503 may be contravened by a person with a “knowing” or “reckless” state of mind. A false or misleading representation is made “knowingly” for the purposes of s 345 when the representor makes the representation “purposely or deliberately or intentionally” while knowing that the representation is untrue, and is made recklessly when the representor either closes his or her eyes to the obvious as to the truth of the representation, or, knowing that it is likely that it is not correct, chooses to make it, not caring whether it is correct or misleading: Retail & Fast Food Workers’ Union Inc v Tantex Holdings Pty Ltd [2020] FCA 1258; (2020) 299 IR 56 at [44].
118 Counsel then submitted that a contravention committed intentionally (or knowingly) is, generally speaking and all things being equal, more serious than one committed recklessly, citing R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 at [86]; R v Dean [2013] NSWSC 1027 at [58]. He drew attention to Tax Practitioners’ Board v Li [2015] FCA 233, in which Edmonds J said in respect of s 50-20 of the Tax Agents Services Act 2009:
[52] Section 50-20(c) in its chapeau creates two different kinds of contravention: knowingly making false, incorrect or misleading statements, and recklessly making such a statement. The first is obviously very much more serious than the second, and both are embraced within the same penalty range. The Court’s task is that of assessing the quality of the particular conduct in the context in which it occurred.
119 However, it is established that the culpability of a reckless offender will increase as the degree to which the offender has adverted to the actual consequences of his conduct increases: Ashe v The Queen [2010] VSCA 119 at [31]. In the present case, the distinction between the recklessness admitted by Mr Tadic in his contravention of s 345 and actual intention appears slight. That is because Mr Tadic, who was plainly an experienced organiser and may be taken to have been familiar with the requirements for the exercise of rights of entry, admits that he knew it was likely to be correct that Watpac was entitled to inspect entry permits prior to, or during, the exercise of a State or Territory OHS right. In these circumstances, I do not consider that there should be any significant moderation of the penalty otherwise appropriate by reason that Mr Tadic’s contravention involved recklessness rather than actual intention.
120 Counsel for the respondents submitted that s 503 refers to objective, rather than subjective, recklessness, citing Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802; (2017) 252 FCR 198 at [40], [182]-[183]. Counsel for the ABCC did not challenge the appropriateness of that conclusion. While counsel for the respondents repeated the submission that a contravention of s 503 based on recklessness is, all things being equal of lesser gravity than a contravention committed with specific intent, he did not contend that the distinction between objective and subjective recklessness was relevant in a material way to the fixation of penalty. It is accordingly unnecessary to consider in these reasons the character of the recklessness contemplated by s 503, and I refrain from doing so.
121 Mr Fellowes contravened s 503 on 23 May 2019 because he had been reckless in giving the impression that he did not have to produce his entry permits. His admission of the contravention did not include an express admission that he had known it was likely to be incorrect that he did not have to produce his permit. However, his having such a state of mind is implicit in his admission: R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 at 469-70. As will be seen, I accept that Mr Fellowes was less experienced as an organiser than Mr Tadic, so that there is more scope for him having been uncertain as to the true position, and therefore more scope for moderation of the penalty to be imposed on him. If it be objective recklessness which is to be considered, then Mr Fellowes’ contravention may have been more serious, but in the circumstances, I will proceed on the basis that it was of lesser seriousness.
The pursuit of a legitimate industrial purpose
122 Counsel for the respondents emphasised that the organisers had attended the Site on each occasion for a bona fide purpose. In the case of the contraventions on 3 April 2019, Mr Tadic, Mr Sloane and Mr McManus had attended to investigate and deal with safety issues; Mr Fellowes was intent on 23 May 2019 in protecting workers from a safety risk which he had identified; on 24 May 2019, Mr McManus and Mr Fellowes were following up what they perceived to be a serious risk of injury; and on 20 June 2019, Mr Savage and Mr Albert were investigating suspected safety risks.
123 In Menon, I addressed the potential significance of such a purpose. As counsel for the respondents in the present case accepted that these were the principles to be applied, it is convenient to repeat some of what I said then.
124 While the purpose for which the organisers attended the Site each day is relevant to an assessment of the context in which the contraventions occurred, the circumstance that they had reasonably suspected that there were matters of safety concern which should be addressed is not a mitigatory matter. Nor is the fact that they had conducted themselves in accordance with the law and in accordance with the Site requirements up until the time of the contravening conduct.
125 A number of matters indicate why that is so. First, the legislative schemes concerning the exercise of rights of entry in Pt 3-4 of the FW Act and in the WHS Act are premised on the permit holder having a legitimate purpose for entering the premises. That being so, the circumstance that an entrant had such a purpose cannot be mitigatory.
126 Further, as counsel for the ABCC submitted, at least some of the purposes sought to be achieved by the requirement that permit holders produce, on request, their entry permit and comply with directions, such as signing the Visitor Register, are safety purposes. As indicated, the former provides some assurance to the occupier as the identity of the entrant and that he or she has had appropriate training. The latter serves to provide the occupier with information as to who is present on the Site at any one time, whether they should be escorted, and as to their likely location. This information is likely to be valuable in making decisions about the location at which work may be safely carried out and in the event of a dangerous situation developing on Site. In these circumstances, there is some incongruity in the respondents’ seeking to take advantage of their motive for being on the Site while at the same time being unwilling to comply with basic requirements directed, at least in part, to the same object.
127 My view that the respondents’ legitimate purposes for being on Site are not mitigatory is similar to that adopted by Rangiah J in analogous circumstances in Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 at [72]. His Honour then held that the respondents’ coercive conduct was not mitigated by the fact that the conduct was directed to the pursuit of a legitimate industrial objective.
128 Counsel for the respondents referred to Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 (Bromberg J) at [26]-[33]; Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934, (2018) 280 IR 173 (Jagot J) at [46]-[47]; Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 (Barker J) at [25]; and to Director, Fair Work Building Industry Inspectorate v Construction Forestry, Mining and Energy Union [2015] FCAFC 59, (2015) 229 FCR 331 (The Agreed Penalties Case FC) at [163]. However, on my understanding, regard was had in each of those cases to the purpose for which the conduct was undertaken for two purposes: first to indicate that the conduct was not aggravated by being arbitrary or capricious; and, secondly, as bearing upon the need for the penalties to reflect considerations of personal deterrence. I do not understand any of these authorities as indicating that the fact that the improper conduct occurred in the pursuit of a legitimate industrial purpose is mitigatory.
129 In summary, I accept that each of the organisers had the purposes to which counsel referred and that those purposes form part of the context in which the seriousness of the contraventions is to be assessed. However, those purposes do not mitigate the seriousness of the contraventions. Nor do I regard those purposes as reducing in any significant way the need for the penalties to reflect personal deterrence. That is particularly so in the case of the contraventions of Mr Savage and Mr Albert on 20 June 2019, as they could have addressed the identified safety concerns in a civil manner. Their improper conduct arises from the way in which they chose to deal with the matters of concern.
130 Counsel for the respondents drew attention to Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; (2018) 265 FCR 208. In his dissenting judgment, Bromwich J said:
[128] The terms of s 500 warrant closer consideration. The primary explicit proscription is against a permit holder intentionally hindering or obstructing any person where the permit holder is exercising or seeking to exercise rights in accordance with Part 3-4 of the FW Act … Also proscribed is otherwise acting in an improper manner …
[129] The proscription against acting in an improper manner has a protean quality insofar as it is apt to apply to a broad range of conduct. The seriousness or gravity of an “improper manner” contravention must be considered in light of the primary focus in s 500 on conduct that has the character of intentionally hindering or obstructing any person.
(Emphasis in the original and citation omitted)
131 Counsel submitted that, in the light of the distinction to which Bromwich J had drawn attention, the objective gravity of the respondents’ contraventions on each of the days in question in this litigation should be assessed on the basis that it was not the more serious form of conduct proscribed by s 500.
132 While I accept that s 500 may be contravened in the two ways to which Bromwich J drew attention, I do not understand his Honour to be saying that conduct constituting improper conduct will, for that reason alone, be objectively less serious than conduct constituting an intentional hindering or obstruction. It is easy to imagine circumstances in which the character of improper conduct in contravention of s 500 may be much more serious than an act of hindrance or obstruction in contravention of the same provision. It would accordingly be inappropriate to commence, as counsel’s submissions seemed to suppose, with a priori assumption that the former will always (or usually) be objectively less serious than the latter. For this reason, I decline to act on the basis of the distinction to which counsel referred. Instead, the proper course is to assess the gravity of the instant contraventions having regard to the facts and circumstances in which they occurred.
The CFMMEU as a recidivist contravenor
133 The ABCC is correct in describing the CFMMEU as a recidivist contravenor. He provided a table indicating that, since 2003, the CFMMEU has been found to have contravened industrial legislation on some 170 occasions, with many of those occasions involving multiple contraventions. It was agreed that in 25 cases, penalties were imposed on the CFMMEU only after the conduct which is the subject of this judgment had occurred. However, some 147 of the occasions for which the CFMMEU has had civil penalties imposed for contraventions of industrial legislation occurred before 3 April 2019, and a further six had occurred before the contraventions on 20 June 2019.
134 The imposition of multiple penalties on the CFMMEU in the recent past does not appear to have had any effect on its conduct. As I noted in Menon at [75], the impression is that CFMMEU at least tolerates, and more likely condones, the conduct of its organisers which occurred in this case and that it has regarded the penalties imposed by the Court as simply a cost of conducting its industrial affairs in the manner it chooses. I refer in this respect to the statement of the Full Court in The Non-Indemnification Personal Payment Case at [23]:
… It is difficult, if not impossible, not to come to the conclusion that the Union is prepared, when it suits it, to contravene the Act and, as here, seek to coerce employers to comply with its demands. Without evidence to the contrary, it is a natural inference that those officials of the Union … tolerate and facilitate this attitude and approach of contraventions of the Act at the choice and will of the Union.
135 The CFMMEU did not adduce any evidence of an intention to “mend its ways”, of having taken corrective action, or of having taken action directed to ensuring that its organisers comply with the law in the exercise of their rights of entry. In particular, it did not provide evidence of instruction or training provided to its organisers or of internal measures it had put in place to limit the prospect of further contraventions.
136 I accept that, as a matter of principle, not all prior contraventions will be relevant, or relevant in the same way to the fixing of the penalty: see Menon at [71]. Much depends on the nature of prior contraventions, the time when they occurred and, perhaps, the circumstances in which they occurred. The majority in Pattinson referred to these considerations at [194].
137 Ordinarily, previous contraventions of a generally similar kind will be particularly relevant, but conduct of that kind may lose some or all of its significance if it occurred well in the past. Previous contraventions involving conduct of a different character may still be relevant to the fixation of penalty. Depending upon the circumstances, a history of previous contraventions may indicate an attitude of defiance of, or indifference to, compliance with the law. In either case, considerations of personal deterrence will usually be important in fixing a penalty. It is also well established that a history of prior contraventions will usually preclude lenience being extended to a contravenor by reason that the contravention under consideration is of an isolated nature, Menon at [72].
Course of conduct and the CFMMEU
138 It was common ground that the statutory course of conduct provisions in s 557 of the FW Act have no application in the present case.
139 It is not necessary to refer to the general law principles concerning course of conduct in any detail as, save for the contraventions on 24 May 2019, the parties were in agreement as to the application of those principles in relation to the contraventions of the individual respondents. I will address the issue concerning the events on 24 May 2019 when imposing the penalties for the contraventions on that day.
140 With respect to the general law principles, I refer to Menon at [77]-[80] and repeat the summary at [80]:
(a) the purpose of the principle is to ensure that, having regard to all the circumstances (both factual and legal), a contravenor is not penalised more than once for the same conduct;
(b) in this way, the principle serves as a technique of analysis;
(c) the application of the principle requires a careful evaluation of all the circumstances;
(d) the principle does not require that two or more contraventions occurring in a single course of conduct be treated as a single contravention;
(e) the principle does not have the effect that the maximum penalty for a single contravention becomes the maximum for all contraventions committed in the one course of conduct; and
(f) the principle does not permit the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. Each contravention continues to attract its own separate penalty.
141 In relation to the CFMMEU, counsel for the respondents submitted that the contraventions of the CFMMEU constituted by the conduct of the three organisers on 3 April 2019, of the two organisers on 24 May 2019, and of the two organisers on 20 June 2019, should be regarded as having occurred in a course of conduct by the CFMMEU on each of those days. In support of this submission, counsel referred to Australian Building and Construction Commissioner v Construction Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 in which O’Callaghan J accepted that the CFMMEU should be taken to have engaged in a single course of conduct constituted by the picketing conduct of two of its organisers and to my decision in Menon at [87]-[89].
142 Counsel for the ABCC opposed this characterisation, contending that on each of the three days in question, the individual respondents had engaged in separate acts and had made separate decisions about their own conduct. He also submitted that it was a case of separate organisers having been deployed by the CFMMEU to attend the Site on 3 April, 24 May and 20 June 2019 who had happened to behave in the way they did. These submissions cannot be accepted because the material on which the Court is asked to proceed indicates that the organisers had, on each of the three days, attended the Site at the same time and with a common purpose. In effect, they had been acting in unison so as to achieve the common purpose. At least with respect to the 3 April and 24 May 2019 contraventions, it may be inferred that the organisers proceeded on the basis of (at least) a tacit understanding of the response they would give if requested to produce their entry permits. The abusive conduct of Mr Savage and Mr Albert may have been more situational and reactive, but each must have decided to support the other. The conduct of the CFMMEU constituted by the organisers’ conduct on each day had a close factual relationship and purpose. In each case, it is obvious that the organisers were not acting independently of one another. Instead, they were acting to pursue the ends of the CFMMEU.
143 I took it to be common ground that the CFMMEU’s contraventions on 23 May 2019 (constituted by Mr Fellowes’ conduct) occurred in the course of a single course of conduct by it.
144 I will impose penalties on the CFMMEU on the basis that its contraventions on each of 3 April, 23 May, 24 May and 20 June 2019 occurred in a single course of conduct on these days. I add, however, that doing so on the basis that the CFMMEU engaged in a course of conduct by the manner in which it deployed the groups of organisers tends to add to the gravity of its contraventions. That is especially so in the case of the 3 April 2019 contraventions as the CFMMEU deployed two persons with no rights of entry at all to attend the Site.
145 The ABCC accepted that Watpac did not suffer any economic loss as a result of the contraventions and that senior officials within the CFMMEU had not been involved in them.
146 The ABCC drew attention, however, to the absence of evidence of any contrition or regret by the respondents and noted that, apart from the formal admissions in the pleadings, there has been no acknowledgement by any of the respondents of the wrongfulness of their conduct. As noted in Menon at [98], absence of contrition or regret is not an aggravating factor but the respondents are not entitled to any leniency on this account.
147 The ABCC also submitted that, given the history of the matter, the respondents are not entitled to any significant reduction in the penalties which are otherwise appropriate by reason of their cooperation in the proceedings. The history is that the ABCC filed the Originating Application on 15 April 2020 with a supporting Statement of Claim. He amended the Statement of Claim in ways which are not presently material on 3 June 2020. Until the negotiation of the compromise on 10 June 2021 mentioned at the commencement of these reasons, the respondents had, as they were entitled to, maintained denials of the ABCC’s allegations. As previously noted, the proceedings were listed for a nine day trial commencing on 15 June 2021.
148 However, the negotiation of the compromise, and the Amended Defences containing admissions of the allegations pursued by the ABCC mean that the ABCC and the Court were spared a substantial liability trial. So also were the Watpac employees who were to be witnesses spared the inconvenience involved in giving evidence. The respondents are entitled to some credit on these accounts. The extent of the credit would have been larger had the admissions been made earlier, or if accompanied by genuine contrition and regret, but the respondents are, as I say, entitled to some reduction in the penalties otherwise applicable by reason of the utilitarian value of their admissions.
149 None of the individual respondents provided evidence of their financial circumstances and the Court received only limited material concerning their respective personal circumstances.
The parties’ submissions concerning the penalties
150 As already seen, the ABCC accepted that penalties should not be imposed for every contravention. While contending that the contraventions involved matters of substance, he also accepted that the contraventions of the individual respondents were “not of the highest order”, Counsel submitted that the penalties in the “low range” should be imposed on Mr McManus and Mr Fellowes and that, in the case of the other individual respondents, penalties in the “medium range” should be imposed.
151 In addition to the matters already mentioned, counsel for the ABCC emphasised that the CFMMEU’s contraventions were antithetical to the rights of entry regime, its conduct was serious, deliberate and unjustified, and that the CFMMEU is large, asset rich and well-resourced, so that “a small penalty” would not be effective as a deterrent. He submitted that the Court should impose penalties on the CFMMEU in the “very high-range” for those contraventions for which penalties are to be imposed on it.
152 Counsel for the respondents submitted that penalties in the range of 10-15% of the maximum were appropriate for the contraventions of Mr McManus, penalties in the range 15-20% of the maximum were appropriate for the contraventions of Mr Tadic and Mr Sloane, a penalty of up to 10% of the maximum would be appropriate for Mr Fellowes’ contravention on 23 May 2019, a penalty between 10-15% of the maximum would be appropriate for Mr Fellowes’ contravention on 24 May 2019, and penalties in the range of 25-30% appropriate for Mr Savage and Mr Albert’s contraventions.
153 With respect to the CFMMEU, counsel for the respondents submitted that penalties in the range of 20-25% of the maximum would be appropriate for its contraventions on 3 April 2019, penalties of 15-20% would be appropriate for its contraventions on 23 May 2019, penalties in the range of 20-25% for its contraventions on 24 May 2019, and penalties in the range of 40-45% for its contraventions on 20 June 2019.
Penalties for the contravention on 3 April 2019
154 The first contravention on 3 April 2019 (the contravention of s 345) was by Mr Tadic in making the Tadic Permit Representation. The contraventions of Mr Sloane and Mr McManus as accessories to Mr Tadic’s contravention occurred simultaneously.
155 The contravention of s 497 by Mr McManus in failing to produce his entry permit when requested to do so by Mr Kamminga occurred soon afterwards. The contraventions of s 497 by Mr Tadic and Mr Sloane as accessories to Mr McManus’ contravention occurred contemporaneously with that of Mr McManus (and in the case of Mr Tadic, by his conduct in making the representation in contravention of s 345).
156 The contravention of s 500 by Mr McManus was constituted by the same conduct amounting to his contravention of s 497. Likewise, the contraventions of s 500 by Mr Tadic and Mr Sloane were constituted by their conduct as accessories to Mr McManus’ s 497 contravention.
157 Considered by itself, the conduct of the three organisers seemed to bespeak an attitude of arrogance and of belligerent entitlement. However, it is an agreed fact that the manner and demeanour of each of Mr McManus, Mr Tadic and Mr Sloane during their attendance at the Site on 3 April 2019 was calm, amicable and amiable. It is also agreed that, apart from their conduct constituting the contraventions, the behaviour of the three organisers had otherwise been appropriate. I will impose penalties on that basis.
158 The ABCC also accepted that, while on Site, Mr McManus, Mr Tadic and Mr Sloane had made proper enquiries in relation to safety matters and had sought to engage constructively in safety improvements. Each of the organisers had complied with the requests made of them by Watpac personnel (other than Mr McManus’ failure to produce his entry permit).
159 As previously noted, the ABCC accepted that s 556 of the FW Act has the effect that penalties are not be imposed in respect of the contravention of s 500 by Mr McManus, and by Mr Tadic and Mr Sloane as accessories, because their actions constituting the improper conduct (failing to produce the entry permit when requested to do so by Mr Kamminga) were in substance the same as the conduct constituting the respective contraventions of s 345. He also accepted that a penalty should not be imposed on Mr Tadic in respect of his accessorial contravention of s 497, as his accessorial conduct was, in substance, the same conduct as constituted the contravention of s 345.
160 The ABCC also accepted, appropriately, that each contravention on 3 April 2019 occurred in a single course of conduct and that the penalties imposed on the organisers should reflect that circumstance. This means that, in order to avoid double punishment, the penalties imposed on Mr McManus and Mr Sloane for their contraventions of s 497 will be lower than if they were separate incursions into contravening conduct.
161 Counsel for the respondents submitted that neither Mr Kamminga nor any other Watpac manager had relied upon Mr Tadic’s misrepresentation and, indeed, that Mr Kamminga had not been deterred by the misrepresentations from persisting with his request to see the entry permits.
162 Counsel for the ABCC submitted that it was not open on the evidence for the Court to find that Mr Kamminga had not been deterred by Mr Tadic’s misrepresentation. He noted that the admitted facts were only that, after Mr Kamminga had repeated his request to see the entry permits (but without success), he had then allowed the organisers onto the Site.
163 The difference between the parties is an issue of fact which it is difficult to resolve on the basis of the pleadings (keeping in mind that, in accordance with this Court’s pleading rules, the FASC contains only allegations of material facts and not of evidence). But in the view I take, it is not necessary to do so. As noted earlier, the effect of a misrepresentation in contravention of s 345 on the person to whom it is made is not an element of the contravention. I proceed on the basis that, had the evidence established that Mr Tadic had succeeded in misleading Mr Kamminga, that would have been an aggravating matter, but the circumstance that he had been unable to do so (if that be the fact), is not mitigatory.
164 The SOAF contains a limited amount of information which is personal to each organiser. It is agreed that Mr McManus ceased employment with the CFMMEU on 17 July 2019, that he does not presently hold an entry permit under any legislation and that he has no intention to seek again to hold an entry permit under any legislation or indeed of being employed again by an employee organisation.
165 It is also an agreed fact that Mr Tadic ceased employment with the CFMMEU on 31 December 2019, that he does not hold an entry permit under any legislation, and that, like Mr McManus, he has no intention of seeking again to hold an entry permit under any legislation or of being employed by an employee organisation.
166 Counsel for the respondents submitted that in these circumstances it was not necessary for the pecuniary penalties to reflect specific deterrence in the case of either Mr McManus or Mr Tadic, citing Australian Building and Construction Commissioner v McDermott (No 3) [2018] FCA 1105 at [88].
167 I accept that the circumstances just mentioned do make specific deterrence less important in the case of Mr McManus and Mr Tadic but do not accept that it is not relevant at all. The material before the Court indicates no more than that Mr McManus and Mr Tadic do not have a present intention of resuming employment in an organisation. It does not, for example, indicate that they have retired from the work force altogether. Their circumstances may change as may their intentions with respect to future employment. Accordingly, specific deterrence remains pertinent.
168 The ABCC accepted that, as at April and May 2019, Mr McManus had not previously been found to have contravened any industrial legislation. He is entitled to credit on account of his good record. However, the Court’s ability to assess the extent of the appropriate credit is hampered by the absence of evidence as to Mr McManus’ employment history, experience as an organiser and the length of time he has held an entry permit.
169 Mr Tadic had contravened provisions in industrial legislation on five separate occasions before April 2019, (in 2004, 2008 (twice) and 2014 (twice)). The last two occasions had involved contraventions of s 500 of the FW Act and in one of those cases the finding of contravention been made, and the penalty imposed, before April 2019. I accept that the 2004 and 2008 contraventions occurred well before April 2019 but the penalty ($7,500) for one of the 2014 contraventions had been imposed as recently as eight months before April 2019.
170 Mr Sloane has also contravened provisions in industrial legislation on five occasions with four of those occasions involving contraventions of s 500 of the FW Act and four occurring before April 2019. In one case, (the penalty had been imposed on Mr Sloane on 27 July 2018, only seven months before 3 April 2019.
171 As was noted by King CJ in R v McInerney (1986) 42 SASR 111 at 113 in relation to criminal offending, the effect of prior offences is more cogent if they have been the subject of conviction before the immediate offence, but the fact that was not the case does not mean that the prior convictions are not relevant. To the contrary, they form part of the circumstances to be assessed by the Court in considering the seriousness of the instant contraventions.
172 The history of previous contraventions by Mr Tadic and Mr Sloane adds to the seriousness of their instant contraventions as they indicate they were committed in continued defiance of the law, especially as they knew that they had no rights of entry. This will be reflected in the penalties I impose.
173 Taking into account all the matters, I impose penalties as follows:
Mr Tadic’s contravention of s 345 – $3,500;
Mr McManus’ contravention of s 345 – $2,600;
Mr Sloane’s contravention of s 345 – $3,250;
Mr McManus’ contravention of s 497 – $2,200; and
Mr Sloane’s contravention of s 497 – $2,700.
174 The penalties for the contraventions of s 497 are lower than those imposed for the contraventions of s 345 having regard, in particular, to the fact that they occurred in the one course of conduct.
175 I will fix the penalties on the CFMMEU for its corresponding contraventions later in these reasons.
Penalties for the contraventions on 23 May 2019
176 Penalties are to be imposed on Mr Fellowes for his contraventions of ss 500 and 503 on 23 May.
177 It was an agreed fact that the purpose of Mr Ceranic and Mr Ostrozny in directing Mr Fellowes to go to the Site office was to allow Watpac:
(a) to record who was on Site for the purpose of any emergency; and
(b) to assess who required an escort around the Site so as to avoid hazards and injury.
That purpose informs the gravity of Mr Fellowes’ improper conduct in refusing to comply with the direction.
178 However, it was also common ground that Mr Fellowes’ manner and demeanour while at the Site on 23 May 2019 had been calm, amicable and amiable and that, apart from his contravening conduct, his behaviour had otherwise been appropriate. The ABCC accepted that, while at the Site, Mr Fellowes had made proper enquiries in relation to safety matters and had sought to engage constructively in safety improvements. Mr Fellowes had attended the Site on other occasions and, with the exception of his attendances on 23 and 24 May 2019, had always made appropriate entries in the Site Visitor Register.
179 It is also pertinent that only a short period elapsed between Mr Fellowes’ failure to comply with the direction that he go to the Site office and his making of the Fellowes Permit Representation. The ABCC accepted that it was appropriate to regard Mr Fellowes’ contraventions on 23 May 2019 as having occurred in the one short course of conduct.
180 Another pertinent consideration is that only a very short period elapsed between Mr Fellowes making the Fellowes Permit Representation to Mr Kamminga and his relenting and then producing his entry permits for inspection.
181 Counsel for the respondents emphasised that Mr Fellowes had considered on reasonable grounds that there existed a circumstance giving rise to a serious and imminent risk to safety at the Site on 23 May, and that he had been seeking to protect workers from that risk. That had been reflected in the fact that Watpac had taken steps to address the identified risk. For the reasons given earlier, while I accept that this forms part of the context in which the contraventions occurred, it is not a matter of mitigation.
182 The Court has been provided with only limited information regarding Mr Fellowes’ personal circumstances. His employment with the CFMMEU ceased on 29 January 2020 but resumed on 1 July 2020. When Mr Fellowes ceased his employment on 29 January 2020, he returned the entry permits issued to him under s 512 of the FW Act and under s 134 of the WHS Act and, since resuming his employment with the CFMMEU, he has not applied for any entry permit. It is an agreed fact that Mr Fellowes has no present intention of seeking to hold an entry permit under any legislation again. For the reasons given earlier, this does not have the effect that specific deterrence is wholly immaterial.
183 Mr Fellowes is entitled to credit by reason that he does not have any record of previous contraventions of provisions in the FW Act. The respondents did not provide any evidence of the length of Mr Fellowes’ employment as an organiser but it may have been relatively short as at April 2019 (in CFMMEU v Kyren I accepted Mr Fellowes’ evidence that he had commenced employment with the CFMMEU in early January 2019 in the position of organiser and had obtained his WHS entry permit under Pt 7 of the WHS Act on 16 January 2019, at [31]).
184 I do take into account that Mr Fellowes’ state of mind was one of recklessness rather than an actual intention to give the impression that he did not have to show his entry permit, and it is very pertinent that Mr Fellowes acceded to Mr Kamminga’s second request (made very soon after the first) that he produce his entry permit.
185 Having regard to all these matters, I impose a penalty on Mr Fellowes of $2,200 in respect of his contravention of s 500 and a penalty of $1,800 in respect of his contravention of s 503. Again, the lower penalty in respect of the s 503 contravention reflects, in particular, that it occurred in a single short course of conduct.
186 Again, I will address the penalties to be imposed on the CFMMEU later in these reasons.
Penalties for the contraventions on 24 May 2019
187 Penalties are to be imposed on Mr McManus and Mr Fellowes for their contraventions of s 500 (by failing to comply with direction that they go to the Site office) and for their later contraventions of s 500 by failing to comply with the requirement to sign the Visitor Register.
188 As noted in respect of Mr Fellowes’ contraventions on 23 May 2019, the purpose of the requirement that the two organisers go to the Site office and that they sign the Visitor Register was that Watpac could:
(a) record who was on Site for the purpose of any emergencies; and
(b) assess who required an escort around the Site so as to avoid hazards and injury.
189 The contraventions of Mr McManus and Mr Fellowes meant that these purposes were frustrated.
190 As was the case with the earlier contraventions, it was common ground that the manner and demeanour of each of Mr McManus and Mr Fellowes while on the Site on 24 May 2019 was calm, amicable and amiable and that, other than to the extent of their contravening conduct, their behaviour had been appropriate.
191 The ABCC also accepted that, while Mr McManus and Mr Fellowes had been on Site, they had made proper enquiries in relation to safety matters and had sought to engage constructively in the safety improvements. He also accepted that Mr McManus and Mr Fellowes had considered on reasonable grounds that there was a serious and imminent risk to safety on the Site and had been seeking to protect workers from that risk. I make the same observation in relation to this circumstance as I did in relation to the earlier contraventions.
192 As noted earlier, Mr McManus has ceased employment with the CFMMEU, no longer holds an entry permit under any legislation, and has no intention of seeking again to hold an entry permit. Although Mr Fellowes continues to be employed by the CFMMEU, he has not applied for an entry permit under any legislation and has no intention of doing so. For the reasons given earlier, however, this does not mean that specific deterrence ceases altogether to be material in the case of the penalties on these two respondents.
193 I regard Mr Fellowes’ contraventions on 24 May 2019 as being more serious than his contraventions on 23 May 2019. Amongst other things, he had had the opportunity to reflect upon the wrongfulness of his conduct on 23 May 2019 and yet chose to persist with conduct of the same kind.
194 Contrary to the submissions of the ABCC, I consider it appropriate to regard the contraventions on 24 May 2019 as having occurred in the course of a short single course of conduct. They occurred in very close temporal proximity and were a manifestation of the organisers’ states of mind that it was appropriate to give attention to the safety issues before (and perhaps without) attending to the formal matters concerning their entry. I accept the respondents’ submission that it would be artificial in these circumstances to regard the two contraventions of s 500 in each case as constituting separate incursions into contravening conduct.
195 I impose penalties on the individual organisers as follows:
Mr McManus’ contravention of s 500 by failing to report to the Site Office – $2,500;
Mr Fellowes’ contravention of s 500 by failing to report to the Site office – $2,800;
Mr McManus’ contravention of s 500 by failing to sign the Visitor Register – $2,200; and
Mr Fellowes’ contravention of s 500 by failing to sign the Visitor Register – $2,500.
Penalties for the contraventions on 20 June 2019
196 Penalties are to be imposed on Mr Savage and Mr Albert for their contraventions of s 500 on 20 June 2019. These contraventions were much more serious than the contraventions addressed above.
197 It may be that a degree of coarse language occurs on construction sites. However, the language used by Mr Savage and Mr Albert, and the sentiments they conveyed, went well beyond coarseness. Instead, their statements had a belittling, denigratory and bullying tenor. They were a form of abuse.
198 The ABCC accepted that Mr Savage and Mr Albert had made proper enquiries in relation to safety matters while on Site and that, apart from their abusive language, had sought to engage constructively in the improvement of safety on the Site. However, they could, and should, have done so in a civil manner. The employees of occupiers of sites should not have to endure conduct of the kind in which they engaged in relation to Mr Kamminga.
199 Counsel for the respondents submitted that the conduct of Mr Savage and Mr Albert should be characterised as the product of frustration on their part, resulting from their belief that Mr Kamminga had not complied with “the agreed resolution method” resolved upon on 19 June 2019 for the resolution of a safety issue identified that day, namely, that Watpac would hold “a whole site toolbox [meeting] dealing with safety issues”. Counsel also submitted that the conduct should be seen as “spontaneous … not premeditated or planned … [but] reactive, situational and the product of frustration”.
200 In my view, the material before the Court supports this submission only in part. As noted earlier, Mr Savage and Mr Albert had attended the Site on the previous day and had had discussions with Mr Kamminga about a Watpac evacuation plan. It can be inferred that Mr Albert’s opening question to Mr Kamminga on 20 June 2019 was a reference to the discussions on the previous day and evidenced an expectation on his part that Watpac would be holding a whole of Site toolbox meeting.
201 However, contrary to the submission of counsel for the respondents, the pleading of the contravention upon which the Court is asked to act presently, does not warrant a finding that there had, on 19 June 2019, been “an agreed resolution method”, or that Watpac’s actions were not in compliance with that method. I reject the respondents’ submission to that extent. I do accept, however, that the material supports a conclusion that Mr Savage and Mr Albert had been annoyed by the action taken by Watpac to address the safety issue and that their abusive language was a manifestation of that annoyance. I take this into account in assessing the character of their conduct. However, for the reasons given earlier, the belittling, denigratory and bullying nature of the organisers’ conduct was entirely inappropriate. The respondents’ submissions recognised this by accepting that higher penalties were appropriate in the case of Mr Savage and Mr Albert.
202 Mr Albert does have a previous contravention of a provision in the FW Act, namely, s 497. That contravention occurred on 8 March 2018 when, while exercising a State or Territory OHS right, Mr Albert refused to produce his entry permit under the FW Act for inspection by the site occupier. The proceedings in respect of that contravention were commenced on 18 April 2018 (Action QUD258/2019) and the finding of the contravention was made by Collier J on 23 October 2019 (Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737 at [114]). An appeal against that decision was unsuccessful (Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203). Consideration of the penalty to be imposed on Mr Albert was deferred pending resolution of the appeal.
203 As noted, a prior contravention has more cogency if it has been the subject of Court order before the instant contravention but nevertheless it is a relevant matter. Some account should be taken of Mr Albert’s demonstrated unwillingness to obey the law and his contravention on 20 June 2019 is to be viewed as slightly more serious than that of Mr Savage. I take into account, however, that the conduct of Mr Albert constituting his s 497 contravention in 2018 was of a different character than his present contravention of s 500.
204 Mr Savage has no history of contraventions.
205 I impose penalties on Mr Savage and Mr Albert of $4,500 and $5,000 respectively.
206 I have considered whether application of the totality principle warrants some amelioration of these penalties imposed on the individual respondents. In doing so, I have had regard to the reasons in Menon at [114]-[116]. For the reasons which I gave in Menon, I do not consider that any reduction in the penalties would be appropriate.
207 As already noted, I will impose penalties on the CFMMEU on the basis that its contraventions on 3 April, 23 May, 24 May and 20 June 2019 occurred in three separate courses of conduct constituted by the contraventions of the individual organisers on each of those days.
208 On 3 April 2019, the course of conduct commenced with Mr Tadic’s statement in contravention of s 345 and (in respect of those contraventions for which penalties are to be imposed) concluded with Mr McManus’ refusal to produce his WHS entry permit.
209 The course of conduct on 23 May 2019 commenced with Mr Fellowes’ refusal at about 2 pm to comply with the direction that he go to the Site office and continued with his making of the Fellowes’ Permit Representation shortly after 2.05 pm. It concluded when Mr Fellowes eventually relented and showed Mr Kamminga his entry permit and shortly afterwards his WHS entry permit.
210 The course of conduct on 24 May 2019 commenced with the disobedience of Mr McManus and Mr Fellowes to the direction contained in the Watpac gate sign and continued while Mr McManus and Mr Fellowes refused to comply with Mr Kamminga’s direction to go to the Site office and sign in. As noted, the evidence did not indicate the time that Mr McManus and Mr Fellowes left the Site.
211 The course of conduct of the CFMMEU on 20 June 2019 commenced at about 9.40 am and continued until Mr Kamminga left Mr Crosby’s office. It seems that this may have involved a period of approximately 15 minutes. I accept, however, that the abusive conduct was not sustained throughout the whole of that period.
212 My acceptance that the contraventions of the CFMMEU on each of these days occurred in a single course of conduct on those days does not of course have the effect that only a single penalty is to be imposed on the CFMMEU in respect of its contraventions on these days. It does, however, mean that the penalties for the successive contraventions may be lower so as to avoid double punishment, that is, by taking account that some elements of the contraventions were penalised in the earlier contraventions.
213 I accept the submission of the ABCC that penalties should be imposed on the CFMMEU on the basis that it is large, asset rich and well resourced; that it has a prior history of contraventions of ss 345, 497, 500 and 503 as well as other provisions in industrial legislation; that its history of prior contraventions bespeaks an indifference to (if not a defiance of) its obligations to comply with the law; that, while its contraventions considered by themselves are not of the worst kind, they are all the more serious because they reflect an attitude of continued defiance of the law; and that it has not sought to mitigate its contraventions by expressions of regret or by providing evidence of steps it has put in place to minimise the risk of future contraventions of a like kind.
214 I do not accept the submission of the ABCC that penalties in the “very high” range should be imposed. To do so would fail to give effect to the notion of proportionality which, as previously indicated, is inherent in the notion of an appropriate penalty for the purposes of s 546 and would mean that penalties are being imposed on the CFMMEU because of its poor history rather than for the instant contraventions.
215 I impose penalties on the CFMMEU as follows:
3 April 2019
For its contravention of s 345 constituted by Mr Tadic’s conduct – $35,000;
For its contravention of s 345 constituted by Mr Sloane’s conduct – $30,000;
For its contravention of s 345 constituted by Mr McManus’ conduct – $24,000;
For its contravention of s 497 constituted by Mr McManus’ conduct – $30,000; and
For its contravention of s 497 constituted by Mr Sloane’s conduct – $27,500.
23 May 2019
For its contravention of s 503 constituted by Mr Fellowes’ conduct – $30,000; and
For its contravention of s 500 constituted by Mr Fellowes’ conduct – $24,000;
24 May 2019
For its contravention of s 500 constituted by Mr McManus’ non-compliance with the sign in direction – $30,000;
For its contravention of s 500 constituted by Mr Fellowes’ non-compliance with the sign in direction – $28,000;
For its contravention of s 500 constituted by Mr McManus’ failure to sign the Visitor Register – $27,000; and
For its contravention of s 500 constituted by Mr Fellowes’ failure to sign the Visitor Register – $25,000.
20 June 2019
For its contravention of s 500 constituted by Mr Savage’s conduct – $37,500; and
For its contravention of s 500 constituted by Mr Albert’s conduct – $42,500.
216 Again I have considered whether the totality principle should be applied with respect to the aggregate amounts. I am not satisfied that there is any basis upon which it would appropriate to do so.
217 All of the penalties are to be paid to the Commonwealth within 28 days.
I certify that the preceding two hundred and seventeen (217) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White. |
SAD 60 of 2020 | |
ANTHONY PATRICK SLOANE | |
Fifth Respondent: | DEAN LESLEY RIELLY |
Sixth Respondent: | CLARENCE JOSEPH FELLOWES |
Seventh Respondent: | BLAKE KIRBY |
Eighth Respondent: | MARK ALAN TRAVERS |
Ninth Respondent: | DESMOND TAIVAIRANGA SAVAGE |
Tenth Respondent: | TE ARANUI JOCK MARTIN ALBERT |
