Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent pay pecuniary penalties totalling $47,250.00.

2.    The second respondent pay pecuniary penalties totalling $7,290.00.

3.    The penalties referred to in orders 1 and 2 above be paid to the Commonwealth within 28 days.

4.    There be no order as to costs.

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

REASONS FOR JUDGMENT

SNADEN J:

Background

1    The applicant moves the court for declaratory relief, the imposition of pecuniary penalties and ancillary orders relating to conduct in which the respondents engaged contrary to various “right of entry” provisions within pt 3-4 of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”). The matters alleged against the respondents were the subject of a contested liability trial. By reasons published on 2 December 2020, the court made findings concerning the alleged contraventions: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727 (hereafter, the “Liability Judgment”). The court accepted that some of the contraventions that the Commissioner alleged had occurred and that some had not. The proceeding was dismissed as against the third respondent and otherwise proceeded to a further hearing for the purposes of assessing what relief should flow from those findings.

2    These reasons address that question of relief. They assume some familiarity with the Liability Judgment and employ the same defined terminology as appears within it.

3    By way of summary, the court concluded by the Liability Judgment that:

(1)    in the evening and early morning of Saturday, 29 and Sunday, 30 April 2017, the second respondent (“Simpson”) exercised at the Eumemmering Creek Site a “State or Territory OHS right” (within the meaning attributed to that phrase by s 494(2) of the FW Act) and:

(a)    having failed to comply with reasonable requests that he abide by occupational health and safety requirements that applied there, did so in contravention of s 499 of the FW Act; and

(b)    whilst doing so, acted in an improper manner (and, therefore, in contravention of s 500 of the FW Act), in that he:

(i)    contravened s 499 of the FW Act (in the manner described above);

(ii)    refused multiple Fulton Hogan demands that he vacate the site; and

(iii)    by his presence and conduct, diverted the attention of multiple Fulton Hogan managers from the tasks upon which they would otherwise have been focused;

(2)    on Tuesday, 9 May 2017, whilst exercising or seeking to exercise a right or rights of entry in accordance with pt 3-4 of the FW Act, Simpson acted in an improper manner (and, therefore, in contravention of s 500 of the FW Act) at the Gate 3 Site, in that he physically pushed a Fulton Hogan manager (Inkster); and

(3)    for the purposes of s 550 of the FW Act and by reason of the conduct and states of mind attributed to it by s 793, the first respondent (the “Union”) was “involved in”—and, thereby, also committed—each of the statutory contraventions that Simpson committed.

4    The matter was the subject of further hearing on Wednesday, 28 April 2021. The Commissioner read an affidavit sworn by Patrick Cheng Tiam Giam. Exhibited to that affidavit was various information, including financial information, that the Union filed with the Registered Organisations Commissioner in September 2020 in satisfaction of reporting obligations imposed upon it by the Fair Work (Registered Organisations) Act 2009 (Cth). The respondents (that is to say, the remaining respondents) read an affidavit affirmed by Mr Brian Lacy AO, the content of which is discussed below (as are some objections that were raised in respect of it). Both sides advanced comprehensive and helpful written and oral submissions.

5    Conceptually, there is little that divides the parties. The Commissioner contends and the respondents accept that the court should grant declaratory relief and impose pecuniary penalties in respect of the contraventions that were found to have transpired (hereafter, the “Established Contraventions”). At issue between them is the level of pecuniary penalty that is appropriate for each such contravention and the form that declaratory relief should assume.

6    For the reasons that follow, the court will impose penalties totalling $7,290.00 as against Simpson and $47,250.00 as against the Union. There is no utility in granting declaratory relief and, that being so, none will be granted.

7    I shall deal with each species of relief in turn.

Pecuniary penalties

Legislative framework

8    The court’s power to impose pecuniary penalties in respect of the Established Contraventions resides in s 546(1) of the FW Act. It is not controversial that:

(1)    insofar as concerns the conduct of 29 and 30 April 2017—and in consequence of the application of s 556 of the FW Act—the court may impose only a single penalty upon each of Simpson and the Union, despite their conduct contravening both ss 499 and 500 of the FW Act;

(2)    in light of that reality, it is convenient to approach the imposition of pecuniary penalties on the basis that Simpson and the Union twice contravened s 500 of the FW Act (once on 29 and 30 April 2017, and once on 9 May 2017); and

(3)    the maximum penalty that may be imposed for each of those two contraventions is:

(a)    $10,800.00 for Simpson; and

(b)    $54,000.00 for the Union.

9    Within those boundaries, s 546(1) permits the court to impose a pecuniary penalty “…that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision”. Plainly in light of the Liability Judgment, that state of satisfaction exists. At issue is what level of penalty, if any, ought to be considered appropriate in light of the Established Contraventions.

Guiding principles

10    It is common ground between the parties (and I accept) that the court should impose pecuniary penalties in respect of the Established Contraventions. There are, perhaps unsurprisingly, diverging views as to what those penalties should be. The Commissioner contends that the Established Contraventions committed by Simpson should attract “mid to high range” penalties, and that those committed by the Union warrant penalties “in the high to near maximum range”. The respondents contend that penalties “at the lower end” are appropriate.

11    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The College Crescent Case) [2020] FCA 757, I made the following observations about the principles that inform the determination of civil penalties in cases such as the present:

32    In determining what penalties are appropriate in the present case, the court’s discretion is very broad: A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466, [6] (Gyles J). The task of assessing what amount to impose is one of “instinctive synthesis” that involves the selection of a figure that takes due account of all factors relevant to the particular case: Wong v The Queen (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen (2005) 228 CLR 357, 373-375 [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68, 84 [55] (Allsop CJ, Davies and Wigney JJ); Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25, 36 [44] (Jagot, Yates and Bromwich JJ).

33    What those factors are will be case-specific, although the authorities are replete with recurring examples of matters to which regard has properly been had in the exercise of the broad discretion at play. In Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560, 580 [91] Buchanan J (with whom, in the result, Gray and Graham JJ agreed), considered those recurring factors and what was, at the time, an emerging tendency to treat them as “checklists”. His Honour noted:

Checklists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.

34    The sole object to which the court must give effect in setting an appropriate penalty is to deter repetition of the conduct in respect of which it is imposed: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155, 167 [19] (Allsop CJ, White and O’Callaghan JJ; the “NIPP Case”). That requires that the court should strive to “…put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, 88 [98] (Dowsett, Greenwood and Wigney JJ); Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076, 52,152 (French J). In the NIPP Case, the full court set the task in the following terms (at 167-168):

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: French J in Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076 at 52,152, cited by the plurality in Commonwealth v Director of the Fair Work Building Industry Inspectorate (Civil Penalties Case) [2015] HCA 46; (2015) 258 CLR 482 at [55]. 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: Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68 at [71].

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: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477-478. 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.

35    Realising the sole objective to which its imposition is directed requires that a pecuniary penalty “…must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249, 265 [62]-[63] (Keane CJ, Finn and Gilmour JJ); Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, 659 [66] (French CJ, Crennan, Bell and Keane JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458, 481 [101] (Dowsett and Rares JJ, North J dissenting; the “Perth Airport Case”).

Those principles—none of which is presently controversial—apply equally in respect of this matter.

12    I turn, then, to the considerations that guide the court’s assessment of what penalties are appropriate.

Nature of the Established Contraventions

13    The conduct constituting each of the Established Contraventions is described at length in the Liability Judgment. It is convenient to focus upon each constituent episode: the contraventions that took place at the Eumemmering Creek Site on 29 and 30 April 2017 (on the one hand) and the contraventions that took place at the Gate 3 Site on 9 May 2017 (on the other).

The Eumemmering Creek Site contraventions

14    Insofar as they arose from the events that transpired at the Eumemmering Creek Site on 29 and 30 April 2017, the Established Contraventions comprised of Simpson:

(1)    attending at the Site to investigate some safety concerns;

(2)    being told of certain occupational health and safety requirements that applied at the site, namely that visitors were required:

(a)    to wear personal protective equipment, including safety glasses and full-length, white reflective overalls; and

(b)    not to venture around the site unless escorted by a representative of Fulton Hogan;

(3)    remaining at the site (and continuing to exercise a State or Territory OHS right) for approximately five hours, despite not wearing safety glasses or full-length, white reflective overalls;

(4)    on two occasions, venturing to parts of the site without being escorted by a representative of Fulton Hogan;

(5)    remaining at the site despite numerous demands by representatives of Fulton Hogan that he vacate it; and

(6)    by his presence and conduct at the site, diverting the attention of four Fulton Hogan representatives from the activities to which their attention ought otherwise to have been directed.

15    For the reasons recorded in the Liability Judgment, Simpson contravened ss 499 and 500 of the FW Act by doing as he did. Pursuant to s 550(1) of the FW Act, the Union was an accessory to those contraventions. Each respondent, then, committed two statutory contraventions, in respect of which the parties are agreed that the court may impose a single pecuniary penalty. That reality reflects the application of s 556 of the FW Act: see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2019) 272 FCR 290 (Bromberg, Wheelahan and Snaden JJ).

16    As is stated above, the Commissioner submits that Simpson’s conduct at the Eumemmering Creek Site was sufficiently serious that it warrants a penalty in the mid-to-high range. He submits that the Union’s conduct warrants a penalty in the high-to-near-maximum range. The disparity reflects that the Union has a long and unflattering history of transgressing against industrial laws such as the FW Act (a history that it properly acknowledges), whereas Simpson does not. The respondents submit that the Established Contraventions warrant penalties “…at the lower end of the objective scale of seriousness”.

17    Simpson’s conduct at the Eumemmering Creek Site on 29 and 30 April 2017 was deliberate. He knew that it contravened occupational health and safety requirements that applied at the site—he was told as much. He arrogated unto himself a right to elevate his own concerns above the obviously more important measures that Fulton Hogan had put in place at the site to ensure that works could progress there safely. To say so is not to downplay Simpson’s concerns. Although the evidence that was led afforded more than a little scope for doubting that they were, it is not in contest that Simpson’s concerns were genuinely held. Nonetheless, as is explored in detail in the Liability Judgment, those concerns lent themselves to investigation in ways that did not require his attendance at the site in contravention of applicable occupational health and safety protocols. He could—and probably should—have investigated them earlier than he did. He could have taken up the offer that was made to him on the night to go back to the Fulton Hogan site office to discuss his concerns there. Instead, he made a conscious choice to remain at the site, even in the face of representations from WorkSafe that he ought not to.

18    Worse, his conduct throughout the episode left much to be desired. Despite understanding that he was not permitted to venture around the site unescorted—and despite agreeing with the police that he would not venture away from the water-filled barriers at the top of the Creek Access Ramp—he did precisely that.

19    At one point, he walked down the Creek Access Ramp toward some workers who were working at or near the western shore of the creek and announced to them that the barges upon which they were to work were unsafe and that they were “risking their lives by working on them”. The workers to whom those representations were directed appeared to dismiss them as overblown theatre. Regardless, the statements bore no obvious connection with any of the concerns that had brought Simpson to the site in the first place, nor with any right of entry that he was apparently there to exercise. Rather, Simpson appears to have felt entitled to take it upon himself to venture as he pleased and to make outlandish accusations under the guise of safety. He did not have any such entitlement. That he acted as he did whilst in knowing breach of applicable safety protocols beggars belief.

20    On another occasion, Simpson took it upon himself to venture up on to the road deck to speak with the operator of the mobile crane that had been (or was being) set up there. Again, he made no attempt to even pretend to comply with his obligation not to wander unescorted from where he was. Instead, he made a conscious decision to strut around the site like he owned it.

21    In at least those respects, Simpson’s conduct at the Eumemmering Creek Site was objectively very serious. He arrogantly assumed for himself a right to determine with which of Fulton Hogan’s occupational health and safety requirements he would comply. He knowingly contravened occupational health and safety protocols that were in place. Despite professing to be there to ensure that work was carried out safely, he put himself and others at risk. His conduct was reckless and conceited.

22    Against that baseline analysis, there are mitigating circumstances that warrant attention. First, it is plainly the case that Simpson’s conduct was less grave than it could have been. Although he did not (and, for the reasons explored in the Liability Judgment, could not) wear full-length, white reflective overalls, he did, at least, wear a fluorescent-orange safety vest. The respondents contend—I think fairly—that the gravity of his misconduct should be informed by that reality (and also by the fact that, as the Liability Judgment makes clear, the site was well lit). Had he done what he did whilst not wearing any high-visibility clothing, his conduct would have been all the more serious.

23    Likewise, it would have been more serious had the site not been as well lit as it was, or had Simpson’s failure to wear full-length, white reflective overalls been a product of refusal on his part (rather than the fact that neither he nor anybody from Fulton Hogan had any for him to wear on the evening in question).

24    Second, it is said that Simpson was mistaken as to his right to remain at the Eumemmering Creek Site (that is to say, remain there after he was told what the occupational health and safety requirements were and after he was asked to leave because he could not satisfy them). That, the contention progresses, should incline the court toward the conclusion that his conduct was less serious than it would have been had he known that his presence there was unlawful.

25    The Commissioner urges the court not to accept that Simpson was mistaken as to his right to remain at the site or behave as he did. He contends that it was made plain to Simpson that he was not entitled to remain; and that, if he truly were mistaken as to the nature of his right, he ought to have led evidence to substantiate what his understanding was.

26    The evidence, such as it is, does not ground the conclusion that the Commissioner invites the court to draw. That conclusion could only be drawn by inference; in particular, as a matter to be inferred from Simpson’s conduct, and from statements that were made to and by him. There is no doubt that Simpson was told that he was not entitled to remain at the Site. Additionally, he was told that WorkSafe would not facilitate his entry onto it. On the other hand, the police opted not to remove him from it and, as history records, he did not leave. It might be that Simpson, in all of the circumstances, knew that he was not entitled to remain at the site given his inability to comply with the occupational health and safety requests that were made of him. Alternatively, he might mistakenly have believed that he was.

27    In the present context, it should not be assumed (or inferred) that Simpson possessed the knowledge that the Commissioner attributes to him. I am not persuaded that he knew that he was not entitled to remain at the Eumemmering Creek Site; that is to say, that s 499 of the FW Act prohibited his exercise of the State or Territory OHS right that he exercised there. It is to be recalled that s 499 of the FW Act does not require compliance with all occupational health and safety-related requests. Instead, it requires compliance with reasonable requests. The present contravention is not in the same category as, for example, freedom of association (or “no ticket, no start”) contraventions, which typically admit of no nuance or “wriggle room” as to what the requirements of the law are. By their nature, the requirements of ss 499 and 500 of the FW Act are susceptible to debate.

28    That being so, I am satisfied that Simpson was not alive to the fact that his conduct or continued presence at the site contravened the FW Act. His insistence on remaining after he was told of the applicable occupational health and safety requirements (and after he was asked to leave for want of satisfying them) was the product of his mistaken belief that he was entitled to remain. That, in turn, informs the court’s assessment of the gravity of his conduct.

29    Third (and relatedly), the respondents point to Simpson’s inexperience. The evidence was that he began as an organiser of the Union approximately three months prior to the events that took place at the Eumemmering Creek Site. I accept that Simpson’s relative inexperience is a factor of which the court should take account in fashioning a penalty appropriate to his misconduct. It reinforces the analysis set out in the paragraphs above. Had Simpson been a more experienced union official, it might have been easier to conclude that he was possessed of greater knowledge about the statutory requirements and, therefore, that he knew that his conduct was offensive to them.

30    Fourth, the respondents underline the objective that Simpson sought to advance by his presence at the site. The gravity of his conduct, so the contention proceeded, reflects the nature of his purpose. Having gone to the site with a view to encouraging safe work practices, his conduct should be seen as objectively less grave than it would have been had it been engaged in in the service of a less noble purpose.

31    There is an inherent circularity to that contention, at least insofar as it applies to Simpson’s contravention of s 499 of the FW Act. Section 499 of the FW Act can only ever be contravened by a permit holder whose conduct is animated by safety concerns. It is difficult to see how the existence of such concerns, then, could possibly be a mitigating circumstance that should inform the court’s assessment of what penalty might be appropriate.

32    All the same, I accept—again, because it wasn’t controversial (and, again, despite the scepticism that the evidence readily afforded)—that, when he attended at the Eumemmering Creek Site on 29 and 30 April 2017, Simpson was animated by concerns that he had about the safety practices that were in place there. For the purposes of his contravention of s 500 of the FW Act, I accept that that is a circumstance that renders his conduct less serious than it might have been had it been animated by less pure motives.

33    Fifth, Simpson’s conduct at the Eumemmering Creek Site on 29 and 30 April 2017, although serious, was apparently of little practical moment. The evidence established that the installation of the “cross-heads” that was scheduled to take place that evening proceeded without any significant delay. Although his presence at the site diverted the attention of Fulton Hogan personnel (in particular, Mr Inkster, Mr Malone, Mr Langley and Ms Virant-Bell), Simpson’s conduct did not amount to much more than an irritating distraction for them: cf Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338, 345-346 [39] (Charlesworth J). That being so, the respondents contend that his misconduct was less grave than it would have been had it resulted in costly delay or interruption. I accept that contention. Simpson’s conduct would have been all the more serious—and more deserving of sterner penalty—had it materially interfered with the work that was to be transacted when he engaged in it. That circumstance properly informs the court’s assessment of the gravity of his misconduct.

34    The considerations so far explored apply with equal force to the Union’s contraventions of ss 499 and 500 and to the court’s assessment of their character, nature, seriousness or gravity. There is an additional consideration that looms large in respect of the Union: namely, its history of non-compliance with the requirements of the FW Act and its predecessors. It was not controversial that the Union’s prior contraventions of industrial laws are relevant to the court’s assessment of the nature or seriousness of the present contraventions; but only insofar as they evince an attitude on its part of belligerence or indifference to the need to comply with the law. The Union’s prior contraventions (and the attitude that they betray) inform the seriousness of particular contravening conduct but they do not licence the imposition in respect of that conduct of a penalty that is disproportionate to its nature or gravity: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, 102 [160] (Dowsett, Greenwood and Wigney JJ). In fashioning a penalty appropriate to present circumstances, the court must be careful not to impose something that has the effect of penalising the Union afresh for its past indiscretions.

35    By his written submissions on relief, the Commissioner made the following observations (references omitted):

33     It is a notorious fact that the CFMMEU is a well-resourced, recidivist offender of workplace laws. It has contravened industrial legislation in approximately 170 separate cases since around 2000, with most cases involving findings of multiple contraventions. An extraordinary number of judgments of this Court have strongly criticised the CFMMEU for its poor compliance record. The prior contravening conduct of the CFMMEU is set out in a table at Attachment B to this outline.

34     More specifically, there are six proceedings with a total of 48 contraventions of s 499, and its predecessor, shaded in green in Attachment B. Five of these proceedings, plus an additional 35 further proceedings, involve a total of 323 contraventions of s 500 and its predecessor, shaded in blue in Attachment B. These include many examples where permit holders have acted improperly in an analogous way, by:

(a)     failing to comply with an occupier’s reasonable requests to comply with an OHS requirement that applies to the premises;

(b)     refusing to leave a premises, despite requests to do so;

(c)     causing unjustifiable disruption to works on site; or

(d)     engaging in a physical altercation.

35     This case history gives rise to the inference of an unwillingness on the part of the CFMMEU to obey industrial regulation generally. More specifically, it demonstrates a history of disobedience on the part of the CFMMEU relevant to the instant contraventions, taking into account not only the provisions contravened, but the features of the contraventions in the circumstances of this case. This demonstrated unwillingness to obey the laws of Parliament should be seen to bear upon the seriousness of contravening conduct in this case, and the penalties reasonably necessary to ensure compliance with the law. The penalties must be sufficiently high to meaningfully address the CFMMEU’s ongoing reoffending.

36    By his written submissions in reply, the Commissioner observed:

Even excluding those cases postdating 9 May 2017, the CFM[M]EU has contravened industrial legislation in approximately 115 separate cases since around 2000. A further 43 separate cases, which were finally determined post 9 May 2017, concerned conduct which took place prior to this date. Fourteen proceedings with a total of 65 contraventions of ss 499 and / or 500 (or their equivalents), and their predecessors, had been determined prior to 9 May 2017, and a further 18 proceedings with a total of 56 contraventions of ss 499 and / or 500, and their predecessors, concerned conduct prior to this date.

37    Subject to what is said below about the issue of corrective measures, I accept all of those submissions. It is not necessary to here list all of the matters in which the Union’s relevant prior contraventions were established (which the Commissioner helpfully listed in “Attachment B” to his submissions). There is no dispute that they occurred, nor any material dispute about their significance. The Union submits that cases that were decided after the conduct of relevance in this case, or that involved conduct that post-dated that conduct, should be afforded less significance than cases decided before April 2017. Likewise, it says that cases that involved defiance of industrial laws generally are of less significance than cases that involved defiance of right of entry provisions such as those to which the present matter relates. In both cases, I accept that that should be so.

38    All the same, the Union’s history is deeply unflattering. It informs the deterrent effect that the court must strive to achieve by the imposition of penalties in this case. That history bespeaks an attitude of defiance or indifference toward industrial laws that, in turn, makes the conduct that is in focus in this case objectively more serious than it would otherwise have been: Pattinson v Australian Building and Construction Commissioner (2020) 384 ALR 75, 109 [109]; 127 [162]; 132 [180] (Allsop CJ, White and Wigney JJ); 146 [230] (Besanko and Bromwich JJ).

The Gate 3 Site contraventions

39    Insofar as they arose from the events that transpired at the Gate 3 Site on 9 May 2017, the Established Contraventions occurred during efforts that Simpson made at that site to investigate concerns that he had about crash barriers that were erected there. It is not necessary to rehearse the background to those investigations. Whilst in attendance at the Gate 3 Site, Simpson and Inkster were involved in a physical altercation. It took place at or near the physical boundary of that site, as Simpson made his way along the crash barriers that were erected there. Inkster made a number of attempts to stop Simpson from progressing beyond that site into a different site (in respect of which Simpson had not given any notice of relevant safety concern). None of those attempts succeeded. On the final such attempt, Simpson physically pushed Inkster aside and continued along the crash barriers. Inkster lost his balance and fell.

40    Again, the Commissioner submits that Simpson’s conduct was sufficiently serious to warrant a penalty in the mid-to-high-range. For the Union, he submits that a penalty should be imposed at the high-to-near-maximum range. The respondents submit that penalties should be imposed “at the lower end”.

41    On any view, Simpson’s conduct—involving, as it did, the use of physical force—was particularly serious. Inkster was entitled to caution Simpson against progressing beyond the part of the site in respect of which he had given notice of his occupational health and safety concerns. There is no suggestion that what Inkster did amounted to obstruction or hindrance of the kind to which s 502 of the FW Act might apply. Even if it did, permit holders cannot take the law into their own hands. If they resort to the use of physical force, they should expect that a court will look dimly upon them.

42    Again, though, there are some mitigating circumstances (or circumstances that are alleged to that end) to which the court must have regard in fashioning appropriate penalties.

43    First, the respondents contend that Simpson’s conduct was not deliberate. It was submitted that Simpson’s conduct did not involve any aggression toward Inkster; but arose, instead, in consequence of Simpson’s attempt to get around him, during (or as a result of) which contact was made.

44    Respectfully, the respondents’ contentions are at odds with the court’s findings in the Liability Judgment, particularly the conclusion stated at [313]:

…I am satisfied, on the balance of probabilities—informed by the nature of the present proceeding and the gravity of what is alleged—that Simpson physically pushed Inkster whilst present at (or near) the Gate 3 Site. I accept that contact was made and that it was more than incidental or unintended.

45    Simpson’s conduct was deliberate. He intended to proceed beyond Inkster’s position and applied physical contact to force his way to that end. It was “more than incidental or unintended”. The penalties to be imposed must take account of that truth.

46    Second, the respondents submit that Simpson’s conduct was “…not engaged in for some arbitrary, base or capricious motive”. Rather, they stress that he attended at the Gate 3 Site in order to ensure that the exclusion or “no-go” zones that separated the crash barriers from areas in which work was performed were sufficiently wide. As with his conduct at the Eumemmering Creek Site, it was put that Simpson was actuated by genuine safety concerns. Again, there was no suggestion otherwise. I accept that Simpson’s purpose is relevant, at least in the sense that his conduct should be seen as less serious than it would otherwise have been had the purpose that animated his conduct been less constructive.

47    Third, the respondents repeat the submission made in respect of the Eumemmering Creek Site conduct: namely, that Simpson’s conduct did not visit any loss. I accept that, so far as it goes. Although Inkster was pushed and fell to the ground, he was uninjured. There was no evidence of any other cost, whether to Fulton Hogan or anybody else, arising from Simpson’s use of force. I accept that that should inform the fashioning of an appropriate penalty, at least in the sense that Simpson’s conduct should be seen as less serious than it would have been had it resulted in injury or some other measurable loss.

48    Again, those observations apply also to the court’s discretion to impose a penalty upon the Union, as does the Union’s history of statutory contraventions (above, [34]-[38]).

Contrition and corrective action

49    The respondents led evidence in the form of an affidavit affirmed on 7 April 2021 by Mr Brian Lacy AO. Parts of that affidavit were objected to in ways to which I shall shortly come; but, in summary, it attested to some training that the Union engaged Mr Lacy AO to provide to its officials, including Simpson, concerning the nature and limits of the rights of entry conferred by part 3-4 of the FW Act. That training, it was said, reflects some effort on the part of the respondents (and in particular the Union) to understand the limits of those statutory powers and to ensure that they are not breached in the future.

50    Mr Lacy AO is a barrister and a former presidential member of what is now the Fair Work Commission. He is well known to and well respected by those who have practiced in the field of industrial law over recent decades. His expertise undoubtedly extends to the nature and limits of the rights of entry conferred by part 3-4 of the FW Act. The Commissioner did not contend otherwise.

51    By a report that he provided to the Union after conducting his training session with Simpson, Mr Lacy AO recorded that:

(1)    he met with Simpson on 18 January 2021 for the purposes of administering that training;

(2)    that meeting lasted for approximately 65 minutes;

(3)    during their session, he explained to Simpson why his conduct at the Eumemmering Creek Site on 29 and 30 April 2017 offended ss 499 and 500 of the FW Act;

(4)    further, he explained to Simpson why his conduct at the Gate 3 Site on 9 May 2017 contravened s 500 of the FW Act;

(5)    during and/or as a result of the training that he undertook, Simpson:

(a)    agreed that “…it is important that he [Simpson] has a good knowledge and understanding of his responsibilities and obligations under industrial and work health and safety laws”;

(b)    stated that he appreciated the opportunity to undertake training in order that he might “…better understand those responsibilities and obligations”;

(c)    appeared, to Mr Lacy’s AO observations and from comments that he (Simpson) made during their discussions (but upon which Mr Lacy AO did not elaborate), to understand “…why his conduct contravened sections 499 and 500 of the FW Act”;

(d)    struck Mr Lacy AO as “…contrite about the events of April/May 2017 and genuinely committed to compliance in future”; and

(e)    appeared to understand “…the steps he needs to take to ensure he does not contravene right of entry provisions in future”.

52    Before preparing his report, Mr Lacy AO “…read, understood and complied with[,] and agree[d] to be bound by the [Federal Court of Australia] Expert Evidence Practice Note (GPN-EXPT)”.

53    Attached to Mr Lacy’s AO expert report was correspondence that the Union sent to him on 22 December 2020, by which it requested that he provide training to Simpson. Amongst other things, that correspondence recorded that:

(1)    the Union wished to retain Mr Lacy AO to provide to Simpson training “…about his responsibilities and obligations under workplace laws”;

(2)    the purpose of that training was “…to ensure Mr Simpson understands and has a good knowledge of his responsibilities and obligations under applicable industrial and work health and safety laws, to assist him to comply with these laws in future”;

(3)    the Union wished “…to ensure that Mr Simpson has sufficient knowledge to facilitate his compliance with the law in the future”;

(4)    Mr Lacy AO was asked, in particular, to focus upon the circumstances of this case and:

(a)    why Simpson’s conduct on 29 and 30 April 2017 was found to have contravened ss 499 and 500 of the FW Act;

(b)    why Simpson’s conduct on 9 May 2017 was found to have contravened s 500 of the FW Act; and

(c)    what steps Simpson needs to take in future “…to ensure that contraventions of ss 499 and 500 do not occur”;

(5)    Mr Lacy AO was requested to prepare a report in respect of the training provided to Simpson; and

(6)    any report so prepared would be provided to the court in connection with the penalty hearing that took place on 28 April 2021.

54    The Commissioner objected to the passages of Mr Lacy’s report that purported to record Simpson’s state of mind or the matters that he appeared, to Mr Lacy, to “understand”. He submitted that those observations were expressions of opinion that did not fall within Mr Lacy’s AO field of expertise and that the court should take no account of them. Broadly, those objections were fairly advanced. To the extent that Mr Lacy AO purported to state in his report what he thought Simpson understood or believed, he trespassed beyond his acknowledged expertise and, respectfully, little if anything can be made of his opinions. To the extent that his observations were products of what Simpson told him, they are admissible under s 66A of the Evidence Act 1995 (Cth) as exceptions to the rule against hearsay. It is difficult to ascertain into which category some of Mr Lacy’s AO observations fall. They are of limited, if any, assistance presently.

55    It doesn’t much matter. Respectfully, the Commissioner’s objections are largely a distraction. The state of Simpson’s knowledge or understanding after having completed his training is one thing; his apparent willingness to undertake it speaks also to the deterrent effect that the setting of penalties in the present case must strive to achieve. Likewise, it is clear from the brief given to Mr Lacy AO that the Union, having orchestrated the training, should be understood to have exhibited a desire to ensure that Simpson and its other organisers conduct themselves lawfully in the future.

56    The Commissioner urged the court to approach the training provided by Mr Lacy AO with some caution. It was, he said, comprised of a single, hour-long training session and was, on the documentation available, designed and intended to assist the Union in proceedings such as this one. He described it as an exercise in self-interest.

57    With respect, that is undoubtedly so; but so to observe is not to acknowledge any relevant want of sincerity on the respondents’ part. The respondents were entitled to take steps to educate themselves with a view to ensuring, first, that they in future avoid the predicament in which they currently find themselves; and, second, that they (and the Union, in particular) can demonstrate why penalties to be imposed upon them in the present circumstances needn’t be as high as they might otherwise need to be (for example, in the Union’s case, because the attitude of belligerence that its history of statutory non-compliance demonstrates is ameliorated, at least to some extent, by a contemporary willingness to ensure that its officials adhere to the requirements of the law).

58    It may be that history vindicates the Commissioner’s scepticism: that the Union’s poor record of compliance with the right of entry provisions of pt 3-4 of the FW Act continues unabated, and that the training provided by Mr Lacy AO is exposed over time as something of a stunt designed to dupe the court into imposing lower penalties than might otherwise have been thought appropriate. If that occurs, it might well serve as a circumstance of which future courts take account in assessing the level of penalty necessary to deter repetition of statutory misconduct.

59    For now, however, I do not share the Commissioner’s cynicism. The training that Mr Lacy AO has administered can only be seen as a welcome development; and as one that reflects well on the Union (for organising it) and on Simpson (for agreeing to undertake it). It reflects an acknowledgment, on the respondents’ part, of wrongdoing—of a problem requiring corrective action. It weighs against other considerations (most obviously, the union’s poor history of statutory contravention), which, in the balance, inform the deterrent effect that the court must strive to achieve through the imposition of penalties in this case.

The respondents’ size, status and resources

60    The Commissioner led uncontested evidence concerning the size and financial resources of the Union. It is not controversial to observe that the Union is notoriously cash- and asset-rich. No equivalent evidence was led about Simpson.

Disposition

61    I consider that it is appropriate, in the circumstances explored above, to impose upon Simpson a penalty set at 30 per cent of the maximum—or $3,240.00—in respect of his conduct at the Eumemmering Creek Site (which is to say, his contravention at that site of s 500 of the FW Act). In respect of his conduct at the Gate 3 Site (and, by it, his contravention of s 500 of the FW Act), it is appropriate to impose a penalty set at 37.5 per cent of the maximum—or $4,050.00.

62    Insofar as concerns the Union, I consider it appropriate to impose pecuniary penalties set at:

(1)    40 per cent of the maximum—or $21,600.00—in respect of its contravention of s 500 of the FW Act at the Eumemmering Creek Site; and

(2)    47.5 per cent of the maximum—or $25,650.00—in respect of its contravention of s 500 of the FW Act at the Gate 3 Site.

63    Penalties set at those levels are appropriate to deter equivalent future conduct, both by Simpson and by other permit holders who might be tempted to engage in similar conduct whilst exercising rights of entry under pt 3-4 of the FW Act. They are appropriate to deter future accessorial conduct on the part of the Union, which I consider requires additional deterrence given its poor history of compliance with industrial laws (and the prevailing and recurring attitude of defiance or indifference to which that history speaks, notwithstanding recent efforts at corrective action).

64    I am satisfied that penalties set at those levels are appropriate to the totality of the conduct in respect of which they are to be imposed.

Declaratory relief

65    The Commissioner seeks declaratory relief to record the contraventions that the court has found were committed. He contends that, “[t]here is utility in the Court recording its disapproval of Simpson’s contravening conduct because of the legal consequences that flow from other provisions of the FW Act, not the subject of this proceeding.” Those provisions are to be found in div 5 of pt 3-4 of the FW Act, subdiv D of which requires (amongst other things) that the Fair Work Commission revoke or suspend the “entry permit” of a person who has been ordered to pay a pecuniary penalty in relation to a contravention of pt 3-4. Section 510(2) of the FW Act moderates that requirement, providing that suspension or revocation of an entry permit can be avoided “…if the [Fair Work Commission] is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances”. It is suggested that, “[d]eclarations would assist the [Fair Work] Commission in [making that] assessment”. The respondents accept that it is appropriate to grant declaratory relief, although they take issue with the form that the Commissioner proposes.

66    The court’s power to make binding declarations of right is not in question. Relief of that nature serves to resolve a justiciable controversy (or, to employ constitutional nomenclature, a “matter”) by stating the existence of a right, privilege, power or immunity: Sankey v Whitlam (1978) 142 CLR 1, 23 (Gibbs ACJ). The exercise of the power is discretionary: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (hereafter, “Ainsworth”), 581 (Mason CJ, Dawson, Toohey and Gaudron JJ). At issue presently is whether the circumstances warrant its exercise.

67    With respect to both sides, I do not accept that they do.

68    In Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070, I had occasion to consider (at [73]-[98]) the court’s power to grant declaratory relief to “record” that a respondent’s conduct was engaged in in contravention of a statute. After referring to authority, I concluded (at [98]) that the court may:

…grant declaratory relief as a means of marking its disapproval of conduct found to have been undertaken in breach of a statute. Alternatively, I accept that there might be circumstances where declaratory relief is appropriate to realise some broader educative or deterrent effect, or otherwise to vindicate or assist an applicant’s actions.

69    Declaratory relief ought not to be granted in the abstract, or where there is no utility in granting it: Ainsworth, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ). Before acceding to a request to grant declaratory relief—including one that isn’t opposed—the court must be persuaded that relief in that nature will produce “foreseeable consequences for the parties”: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, 613 [52] (Gaudron J).

70    I am not persuaded that the granting of declaratory relief in this matter will visit any such consequences. The form of relief that is proposed does not obviously convey any sense of disapproval by the court of the respondents’ conduct; and certainly not anything beyond that which these reasons convey. It is not apparent that declaratory relief in the form that is sought might realise any educative or deterrent effect additional to that which flows from these reasons, the Liability Judgment and/or the orders that will be made (including those that will impose pecuniary penalties).

71    That leaves the application of s 510(2) of the FW Act. The Commissioner contends that declaratory relief will assist the Fair Work Commission to assess whether or not the suspension or revocation of Simpson’s entry permit under s 510(1)(d) is “harsh or unreasonable in the circumstances”. With respect, I don’t accept that it will (nor even that it could). The existence or otherwise of declaratory relief cannot properly inform that assessment. To conclude otherwise would be to accept that, having taken account of the imposition of a pecuniary penalty—and being consequently satisfied of the need under s 510(1)(d) of the FW Act to revoke or suspend an entry permit—the Fair Work Commission might, nonetheless, perceive or not perceive relevant harshness or unreasonableness (and, in consequence, settle or not settle upon a contrary course) merely because the conduct that warranted the penalty was also the subject of declaratory relief. That proposition is illogical.

72    The conduct at the centre of the Established Contraventions has been the subject of extensive analysis and is recorded in detail in the court’s reasons. It will attract the imposition of pecuniary penalties. To make it the subject of declaratory relief as well would be wholly inconsequential to the parties. Declaratory relief, in those circumstances, is simply not necessary or useful.

73    That being so, no declaratory relief will be granted.

Disposition

74    There shall be pecuniary penalty orders in the nature described above. The amounts that are the subject of those orders will be payable to the Commonwealth within 28 days. Section 570(1) of the FW Act prohibits the court from awarding costs in the present circumstances and no order will be made on that front.

Associate:

Dated:    14 September 2021