Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Toowoomba Bypass Case) [2021] FCA 1128

ORDERS

In these Orders:

(i)    “FW Act” means the Fair Work Act 2009 (Cth).

(ii)    “Federal entry permit” means an entry permit issued by the Fair Work Commission to an official of an organisation under s 512 of the FW Act.

(iii)     “Site” means the construction site area of the Toowoomba Second Range Crossing Project referred to in paragraph 13 of the Amended Statement of Claim filed on 15 June 2021.

(iv)     “State or Territory OHS right” means a right to enter premises under s 81(3) of the Work Health and Safety Act 2011 (Qld) (WHS Act), being a State or Territory OHS right within the meaning of s 494(2) of the FW Act.

THE COURT DECLARES THAT:

The second respondent – Kurt Pauls

1.    On 30 April 2018, 1 May 2018 and on the morning and again on the afternoon of 2 May 2018, the second respondent contravened s 494(1) of the FW Act by exercising a State or Territory OHS right by entering the Site when he was not a permit holder within the meaning of the FW Act.

The third respondent - Beau Seiffert

2.    On 30 April 2018 and 1 May 2018, the third respondent contravened s 500 of the FW Act when exercising a State or Territory OHS right, by acting in an improper manner by:

(a)    refusing a request by the occupier of the Site to produce his Federal entry permit for inspection; and

(b)    failing to comply with several requests from the occupier of the Site to leave the Site.

The fourth respondent – Te Aranui Albert

3.    On 1 May 2018, the fourth respondent contravened s 500 of the FW Act when exercising a State or Territory OHS right, by acting in an improper manner by:

(a)    refusing a request by the occupier of the Site to produce his Federal entry permit for inspection; and

(b)    failing to comply with several requests from the occupier of the Site to leave the Site.

The fifth respondent – Blake Hynes

4.    On 1 May 2018 and on the morning and again on the afternoon of 2 May 2018, the fifth respondent contravened s 500 of the FW Act when exercising a State or Territory OHS right, by acting in an improper manner by:

(a)    refusing a request by the occupier of the Site to produce his Federal entry permit for inspection; and

(b)    failing to comply with several requests from the occupier of the Site to leave the Site.

The sixth respondent – Shaun Desmond

5.    On the morning and again on the afternoon of 2 May 2018, the sixth respondent contravened s 500 of the FW Act when exercising a State or Territory OHS right, by acting in an improper manner by:

(a)    refusing a request by the occupier of the Site to produce his Federal entry permit for inspection; and

(b)    failing to comply with a request from the occupier of the Site to leave the Site.

The seventh respondent – Craig Davidson

6.    On the morning and again on the afternoon of 2 May 2018, the seventh respondent contravened s 500 of the FW Act when exercising a State or Territory OHS right, by acting in an improper manner by:

(a)    refusing a request by the occupier of the Site to produce his Federal entry permit for inspection; and

(b)    failing to comply with several requests from the occupier of the Site to leave the Site.

The eighth respondent – Justin Steele

7.    On the morning and again on the afternoon of 2 May 2018, the eighth respondent contravened s 500 of the FW Act when exercising a State or Territory OHS right, by acting in an improper manner by:

(a)    refusing a request by the occupier of the Site to produce his Federal entry permit for inspection; and

(b)    failing to comply with several requests from the occupier of the Site to leave the Site.

The ninth respondent – Michael Davis

8.    On the morning and again on the afternoon of 2 May 2018, the ninth respondent contravened s 494(1) of the FW Act by exercising a State or Territory OHS right by entering the Site when he was not a permit holder within the meaning of the FW Act.

The first respondent – CFMMEU – accessorial liability

9.    In respect of the contraventions of ss 494(1) and 500 of the FW Act referred to in Orders 1 to 8 above, the first respondent:

(a)    is taken by operation of s 793(1) of the FW Act to have engaged in the conduct of each individual respondent, thereby participating in each contravention in each case;

(b)    is taken by operation of s 793(2) of the FW Act to have known of all of the essential facts constituting each contravention in each case;

(c)    was accordingly knowingly concerned in each contravention within the meaning of s 550 of the FW Act; and

(d)    thereby contravened ss 494(1) and 500 of the FW Act on each occasion.

THE COURT ORDERS THAT:

10.    The first respondent pay three pecuniary penalties of $25,000 each, amounting to a total of $75,000, in respect of its six contraventions of s 494(1) of the FW Act and its twelve contraventions of s 500 of the FW Act.

11.    The second respondent pay three pecuniary penalties of $5,000 each, amounting to a total of $15,000, in respect of his four contraventions of s 494(1) of the FW Act.

12.    The third respondent pay two pecuniary penalties of $4,000 each, amounting to a total of $8,000, in respect of his two contraventions of s 500 of the FW Act.

13.    The fourth respondent pay one pecuniary penalty of $4,000 in respect of his one contravention of s 500 of the FW Act.

14.    The fifth respondent pay two pecuniary penalties of $4,000 each, amounting to a total of $8,000, in respect of his three contraventions of s 500 of the FW Act.

15.    The sixth respondent pay one pecuniary penalty of $3,000 in respect of his two contraventions of s 500 of the FW Act.

16.    The seventh respondent pay one pecuniary penalty of $2,000 in respect of his two contraventions of s 500 of the FW Act.

17.    The eighth respondent pay one pecuniary penalty of $3,000 in respect of his two contraventions of s 500 of the FW Act.

18.    The ninth respondent pay one pecuniary penalty of $3,000 in respect of his two contraventions of s 494(1) of the FW Act.

19.    The pecuniary penalties referred to in Orders 10 to 18 above be paid to the Commonwealth of Australia within 45 days of the date of these Orders.

20.    There be no order as to costs.

THE COURT DIRECTS THAT:

21.    The applicant serve these orders on:

(a)    the first respondent in accordance with r 10.04 of the Federal Court Rules 2011 (Cth); and

(b)    each of the second to ninth respondents in accordance with r 10.01 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant (the Commissioner) has brought proceedings seeking declaratory orders and the imposition of pecuniary penalties upon the respondents. The Commissioner alleges that:

(a)    the second and ninth respondents contravened s 494(1) of the Fair Work Act 2009 (Cth) (the FW Act);

(b)    the third to eighth respondents contravened s 500 of the FW Act;

(c)    the first respondent (the Union) contravened s 494(1) of the FW Act by reason of the contraventions of the second and ninth respondents, and s 500 of the FW Act by reason of the contraventions of the third to eighth respondents.

2    The respondents have admitted the allegations made against them. It is necessary to consider the relief sought by the Commissioner.

3    The issues in dispute are:

(a)    the form of the declarations of contravention of s 500 of the FW Act;

(b)    the number and level of pecuniary penalties that are appropriate; and

(c)    whether personal payment orders should be made against the second to ninth respondents.

4    I will proceed by outlining the relevant legislative provisions and the facts of the case before considering the issues in dispute.

The legislation

5    Section 494 of the FW Act provides:

494    Official must be permit holder to exercise State or Territory OHS right

Official must be permit holder

(1)    An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.

Note:    This subsection is a civil remedy provision (see Part 4-1).

Meaning of State or Territory OHS right

(2)    A right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises, is a State or Territory OHS right if the right is conferred by a State or Territory OHS law, and:

(a)    the premises are occupied or otherwise controlled by any of the following:

(i)    a constitutional corporation;

...

Meaning of State or Territory OHS law

(3)    A State or Territory OHS law is a law of a State or a Territory prescribed by the regulations.

6    Section 500 of the FW Act 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).

…

7    Section 512 of the FW Act provides:

512    FWC may issue entry permits

The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.

8    The Work Health and Safety Act 2011 (Qld) (the WHS Act) is prescribed as a “State or Territory OHS law” for the purposes of s 494(3) of the FW Act. Section 81(3) of the WHS Act provides:

81    Resolution of health and safety issues

…

(3)    A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue.

9    Section 546 of the FW Act provides:

546    Pecuniary penalty orders

(1)    The Federal Court, the Federal Circuit Court or an eligible State or Territory 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.

…

No limitation on orders

(5)    To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

The facts

10    The respondents’ defence (Defence) admits each of the allegations made in the Commissioner’s Amended Statement of Claim (ASOC). The Defence pleads, in addition, that:

…[A]t the time of the contravening conduct [the second to ninth respondents] held a genuine but mistaken belief that s 81(3) of the [WHS Act] did not create a “State or Territory OHS right” for the purposes of s 494(2) of the FW Act and entry to premises under s 81(3) of the WHS Act did not involve the exercise of rights in accordance with Pt 3–4 of the [FW Act], such that they were not required to show entry permits, or in the event that they fail to show their entry permits, leave the premises as requested by the occupier.

11    The Commissioner has not filed any affidavits elaborating upon the allegations in the ASOC. The respondents rely upon the affidavit of Mr Kupsch, the president and workplace health and safety coordinator of the Queensland and Northern Territory Branch of the Construction and General Division of the Union, to establish the assertion made in the Defence. Accordingly, the facts of the case must be determined solely upon the pleadings and the affidavit of Mr Kupsch.

12    The second to ninth respondents were employed as organisers by the Union at the relevant times.

13    The second respondent (Mr Pauls) and the ninth respondent (Mr Davis) did not hold any entry permit issued pursuant to s 512 of the FW Act.

14    The third respondent (Mr Seiffert), the fourth respondent (Mr Albert), the fifth respondent (Mr Hynes), the sixth respondent (Mr Desmond), the seventh respondent (Mr Davidson) and the eighth respondent (Mr Steele) each held an entry permit.

15    In 2018, a road project known as the “Toowoomba Second Range Crossing” was being constructed for the Queensland Government (the Project). The Project involved the construction of a 41 km road bypassing the Toowoomba Range and connecting the Warrego Highway and the Gore Highway.

16    Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd (the Project Managers) formed an unincorporated joint venture known as Nexus Delivery and were jointly responsible for managing the Project and constructing the road.

17    On Monday, 30 April 2018, Mr Pauls and Mr Seiffert attended the central site office compound for the Project. They said they were there “under s 81(3)” to resolve a dispute, that they had been contacted by workers, and that they wanted to discuss two incidents from the previous week. One of them said the issues included safe systems of work, falling objects and access and egress issues. The reference to “s 81(3)” was apparently to s 81(3) of the WHS Act.

18    Representatives of the Project Managers requested that Mr Pauls and Mr Seiffert produce their entry permits for inspection and told them they were not permitted to enter the site without production of the permits. Mr Pauls and Mr Seiffert refused to produce entry permits saying that they did not have to do so when entering under s 81(3) as they were not present as Union officials, but were there to resolve a dispute. Mr Pauls said, “We don’t need to be permit holders to use any provision of the Act”, and, “I’m coming in under s 81(3). I don’t have to show you anything”.

19    Mr Pauls and Mr Seiffert subsequently entered an area of the Project site known as the “Viaduct Section” and walked around. A representative of the Project Managers told Mr Pauls and Mr Seiffert that as they had refused to show their entry permits, access to the site was not approved, that they were not authorised to be on the site and that they needed to leave. Mr Pauls and Mr Seiffert refused to leave, saying that they had a legal right to be there under s 81(3) of the WHS Act.

20    Mr Pauls and Mr Seiffert admit in the Defence that they were each exercising a right to enter the site pursuant to s 81(3) of the WHS Act and were exercising a “State or Territory OHS right” within the meaning of s 494(2) of the FW Act.

21    On Tuesday, 1 May 2018, Mr Pauls, Mr Seiffert, Mr Albert and Mr Hynes attended the central site office compound. Mr Seiffert said, “We are here under s 81(3). There is an issue with the water cart incident and we have also had some calls from employees about access and egress out west and emergency retrieval”. Mr Pauls also referred to access and egress issues. Another Union official referred to being on site to assist in resolving a dispute about the water cart incident.

22    A representative of the Project Managers requested that the Union officials produce their entry permits for inspection and told them that they were not permitted to enter the site without producing permits. The Union officials refused to produce their entry permits, saying they were not on-site “as permit holders”. Mr Pauls and Mr Seiffert indicated that they would not be showing any entry permits. Several of the Union officials said words to the effect that they were there, “as concerned citizens, not as Union officials”.

23    Mr Pauls, Mr Seiffert, Mr Albert and Mr Hynes subsequently entered the site at the Gore Highway western section and walked about 4 km along the site. They refused requests from representatives of the Project Managers to leave the site.

24    Mr Pauls, Mr Seiffert, Mr Albert and Mr Hynes each admit in the Defence that on 1 May 2018, they were exercising a right to enter the site pursuant to s 81(3) of the WHS Act and were exercising a “State or Territory OHS right” within the meaning of s 494(2) of the FW Act.

25    On Wednesday, 2 May 2018, Mr Pauls, Mr Hynes, Mr Desmond, Mr Davidson, Mr Steele and Mr Davis attended the central site office compound. Mr Pauls said they were at the site, “under s 81(3) like yesterday”. When asked for identification of the issues, Mr Pauls said, “The same stuff as yesterday, access and egress”. Mr Hynes said, “Access, egress, unsafe systems of work, non-compliance, obstruction”, and “Safe work method statements, high risk work and plant”. One of the officials said, “Falls from heights, falling objects”. At another stage, either Mr Desmond or Mr Davis said, “We are here under s 81(3), we don’t need a permit mate”.

26    A representative of the Project Managers requested that the Union officials produce their entry permits for inspection and told them that they were not permitted to enter the site without producing entry permits. The Union officials refused to produce their entry permits.

27    That morning, the Union officials entered the site in an area known as Bridge 12 and walked around the area. Mr Davidson and Mr Steele attended the Viaduct Section and walked around. Mr Pauls and Mr Hynes also attended the Viaduct Section and walked around.

28    That afternoon, Mr Desmond and Mr Davis entered the Viaduct Section and walked around the area. Mr Davidson and Mr Steele entered the Bridge 12 area and walked around. Mr Pauls and Mr Hynes entered the Bridge 10 area and walked around. Mr Desmond refused a request to leave the site. Mr Desmond and Mr Davis refused requests to produce their entry permits for inspection and refused requests to leave the site.

29    Mr Pauls, Mr Hynes, Mr Desmond, Mr Davidson, Mr Steele and Mr Davis admit that on 2 May 2018, they were exercising a right to enter the site pursuant to s 81(3) of the WHS Act and were exercising a State or Territory OHS right within the meaning of the term in s 494(2) of the FW Act.

30    Mr Pauls admits that he contravened s 494(1) of the FW Act on 30 April, 1 May and the morning and afternoon of 2 May 2018.

31    Mr Davis admits that he contravened s 494(1) of the FW Act on the morning and afternoon of 2 May 2018.

32    Mr Seiffert admits that on 30 April and 1 May 2018 he contravened s 500 of the FW Act.

33    Mr Albert admits that on 1 May 2018, he contravened s 500 of the FW Act.

34    Mr Hynes admits that on 1 May, and the morning and afternoon of 2 May 2018, he contravened s 500 of the FW Act.

35    Messrs Desmond, Davidson and Steele admit that in the morning and on the afternoon of 2 May 2018, they contravened s 500 of the FW Act.

36    The contraventions of s 500 are admitted on the basis that the Union officials engaged in “improper behaviour”.

37    The Union admits that it engaged in the same contraventions as admitted by the Union officials.

Declaratory relief

38    The Commissioner seeks declaratory orders reflecting the admitted contraventions of the FW Act.

39    In proceedings brought by a regulator involving contraventions of civil penalty provisions, a declaration is usually appropriate to formally record the basis upon which the proceedings have been resolved, even where penalties are to be imposed: see, for example, Cruse v Multiplex Ltd (2008) 172 FCR 279 at [53] (and cases cited therein); Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1 at [68]-[69]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at [93].

40    Declarations to formally reflect the nature of the contraventions are particularly appropriate in a case such as this, involving admissions, rather than findings of fact and law in published reasons for judgment: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 938 at [9].

41    There is no dispute that appropriate declarations should be made. Neither is there any dispute as to the appropriate form of declarations in respect of the contraventions of s 494(1) of the FW Act by Mr Pauls and Mr Davis. However, there is an issue concerning the appropriate form of declarations in respect of the contraventions of s 500 of the FW Act.

42    The Commissioner proposes that the declarations of contravention of s 500 of the FW Act be made in a generally standard form. An example is the declarations sought in respect of Mr Seiffert’s conduct:

On each of 30 April 2018 and 1 May 2018, the third respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:

(a)    refusing a request by the occupier of the Site to produce his Federal entry permit for inspection;

(b)    subsequently walking around parts of the Site; and

(c)    failing to comply with several requests from the occupier of the Site to leave the Site.

43    The respondents accept that they engaged in improper conduct while exercising rights in accordance with Part 3-4 of the FW Act in contravention of s 500 of the FW Act by refusing requests by the occupier of the Project site to produce their entry permits for inspection and by failing to comply with requests from the occupier to leave the site. The respondents submit, however, that they have not admitted they engaged in improper conduct by walking upon the site. They submit that the words “subsequently walking around parts of the Site” should be excised from the declarations made.

44    The ASOC is not entirely clear as to what conduct is alleged to constitute contraventions of s 500 of the FW Act. Paragraph 52 of the ASOC contains a table which, relevantly, purports to set out in column D how each relevant respondent contravened s 500 by “acting in an improper manner”. Column D does not expressly describe the relevant conduct, but refers merely to paragraph numbers of the ASOC. The case of Mr Seiffert provides an example. For Mr Seiffert, column D for 30 April 2018 simply contains the notations “23 and 24”, referring to paragraph numbers of the ASOC. Paragraph 23 states, relevantly, that Mr Pauls and Mr Seiffert “refused to and did not produce their entry permits; and…subsequently entered and walked around parts of the Site”. Paragraph 24 states that Mr Pauls and Mr Seiffert, “refused several requests from Mr Ingham to leave the Site”. The Defence admits the allegations in paragraphs 23, 24 and 52 (with qualification) of the ASOC.

45    It is clear that the Defence admits that Mr Seiffert’s refusal to produce his entry permit and subsequent failure to leave when requested to do so was improper conduct. That is consistent with s 497 of the FW Act which provides that a permit holder, “must not exercise a State or Territory OHS right unless the permit holder produces their entry permit for inspection when asked by the occupier of the premises or an affected employer”. Mr Seiffert purported to enter the site pursuant to a State or Territory OHS right under s 81(3) of the WHS Act, which permits entry of a representative into a workplace for the purpose of attending discussions with a view to resolving an issue. Section 81(3) of the WHS Act, taken with s 494 of the FW Act, expressly confers a right upon a representative who is a permit holder to enter a workplace and impliedly confers a right to remain there while attending discussions with a view to resolving an issue. The exercise of that right is subject to producing an entry permit when asked by the occupier of the premises or an affected employer. The relevant respondents admit that their refusal to produce an entry permit and subsequent failure to leave was improper conduct which contravened s 500 of the FW Act.

46    However, given the way the allegation of Mr Seiffert’s breach of s 500 of the FW Act is pleaded in the ASOC, it is not clear that the admission in the Defence that he walked around parts of the site amounts to an admission that walking around the site was itself improper conduct. An “improper purpose” consists in a breach of the standards of conduct that would be expected of a person in the position of the contravener by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case: see R v Byrnes and Hopwood (1995) 183 CLR 501 at 514-515; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [107]; Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668; (2015) 147 ALD 373 at [97]. The gist of the contravention was that Mr Seiffert acted improperly by reason of his refusal to produce his entry permit and his subsequent failure to leave when requested. It is difficult to see how merely walking around the site could of itself be improper conduct. Whether Mr Seiffert walked around the site or stood still was of no moment—the improper conduct after entry lay in failing to leave when asked to do so. The original statement of claim contained allegations that Mr Seiffert walked around uninducted and unsupervised by a site representative. If that allegation had been maintained in the ASOC and admitted, it might have formed the basis for an argument that walking around the site amounted to improper conduct on the basis that the conduct breached s 499 of the FW Act, which requires compliance with a reasonable request to comply with an occupational health and safety requirement: cf 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; (2019) 292 IR 259 at [127]-[135]. However, the ASOC deleted that allegation.

47    It has not been demonstrated that walking around the site was, or was admitted to be, improper conduct. I accept the respondents’ submission that the words “subsequently walking around parts of the Site” should be excised from the declarations of contravention made.

Pecuniary penalties

48    The Commissioner seeks orders pursuant to s 546 of the FW Act imposing pecuniary penalties upon each of the respondents for their contraventions of the FW Act.

49    Messrs Pauls and Davis contravened s 494(1) of the FW Act as follows:

    Mr Pauls - four contraventions (on 30 April 2018, 1 May 2018 and twice on 2 May 2018);

    Mr Davis - two contraventions (on 2 May 2018).

50    Messrs Seiffert, Albert, Hynes, Desmond, Davidson and Steele contravened s 500 of the FW Act as follows:

    Mr Seiffert – two contraventions (on 30 April and 1 May 2018);

    Mr Albert - one contravention (on 1 May 2018);

    Mr Hynes - three contraventions (once on 1 May and twice on 2 May 2018);

    Mr Desmond - two contraventions (twice on 2 May 2018);

    Mr Davidson - two contraventions (twice on 2 May 2018);

    Mr Steele - two contraventions (twice on 2 May 2018).

51    The Union engaged in six contraventions of s 494(1) and 12 contraventions of s 500 of the FW Act.

52    The maximum penalty for each contravention is 300 penalty units for the Union and 60 penalty units for each of the individual respondents. At the time of the contravening conduct, the value of a penalty unit was $210. Accordingly, the maximum penalty that might be imposed for each contravention by the Union is $63,000, and for each contravention by the individual respondents is $12,600.

53    Deterrence, both specific and general, is the “principal and indeed only” objective of pecuniary penalties under the FW Act: Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [55]. Retribution, denunciation and rehabilitation have no part to play: Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 299 IR 404 at [35].

54    The Full Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at [102] categorised the factors based on, “whether they relate to the objective nature and seriousness of the offending conduct, or concern the particular circumstances of the defendant in question”. The Full Court continued:

[103]    The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.

[104]    The factors that concern the particular circumstances of the defendant, particularly where the defendant is a corporation, generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.

55    Checklists of this kind are useful, but must not become transformed into a rigid catalogue of matters for attention: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [91], Pattinson at [99]. Rather, the task of the Court when assessing penalty is one of “instinctive synthesis”, involving the “identification and balancing of all the considerations relevant to the contravention and the circumstances of the respondent”: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan St Case”) [2018] FCA 957 at [51].

56    The Full Court in Pattinson determined that the principle of proportionality applies in a civil penalty context to determine that deterrence is for contraventions of a “like kind”, and that the maximum penalty assists to shape the penalty for the contravention under consideration, with the maximum being reserved for cases falling in the worst possible category where the need for deterrence is most pronounced.

57    The Full Court explained that in determining the appropriate penalty, all the circumstances of the case are to be considered, including the personal circumstances of the contravener. Hence, the demonstrated willingness of a contravener to break the law may inform the assessment of what is reasonably appropriate to deter a contravener from committing like contraventions, and may inform the ascertainment of an appropriate (and proportionate) penalty. However, a history of contravening does not, of itself, and without proper analysis and explanation, determine that a contravention is more serious in the hands of a recidivist contravener. Attention must be paid to the nature, context and circumstances of the instant contravention.

58    Pattinson also indicated that a contravener’s recidivism cannot be deployed to permit the imposition of a penalty at or near the maximum without real evaluation of the objective characteristics of the contravention. While the sole object of the imposition of penalties is deterrence, the penal response to a contravention cannot be untethered from the nature and character of the contravention.

The nature and seriousness of the contraventions

59    Part 3-4 of the FW Act confers significant powers upon union officials, but creates limitations and checks upon those powers. Those limitations and checks include ss 494(1) and 500. Section 494(1) makes it a civil penalty offence for a person who does not have an entry permit to exercise a State or Territory OHS right. Section 500 prohibits a person who is a permit holder exercising, or seeking to exercise, rights in accordance with Part 3-4 from intentionally hindering or obstructing a person, or otherwise acting in an improper manner. Any contravention of those provisions must be regarded as serious. However, there is a spectrum of seriousness.

60    The parties’ submissions upon the seriousness of the contraventions are diametrically opposed. The Commissioner submits that the respondents knew that they were engaging in unlawful conduct and that the contraventions were deliberate, calculated and objectively serious. On the other hand, the respondents submit that they had a genuine and reasonable belief that their conduct was lawful and that their contraventions fall at the lowest end of the spectrum.

61    The respondents contend that at the time of the contraventions, the Union’s understanding was that the power under s 81(3) of the WHS Act was not a “State and Territory OHS right” within s 494(2) of the FW Act; and that, accordingly, a permit was not required when exercising the right under s 81(3) to enter and remain on premises. The Union communicated that position to the individual respondents. The respondents argue that the allegations made in the ASOC (and admitted in the Defence) as to what the individual respondents said at the times of the contraventions demonstrate that they believed they did not need to be permit holders or produce permits.

62    The respondents submit that the Queensland statutory authority responsible for the administration of the WHS Act (the State Authority) shared their understanding that no permit was required when exercising powers under s 81(3) of the WHS Act. The point seems to go to the reasonableness of the respondents’ belief.

63    On 27 March 2018, the State Authority issued an Improvement Notice directed to Mr Sanchez, an employee of the Project Managers. The notice records that, “s 81(3) of the Act grants the organisers in this case the right to enter the premises provided the conditions in s 81 are satisfied, whether or not they have a permit issued under s 171.” It is unclear what was meant by “a permit issued under s 171”, but it may have been intended to refer to a permit issued under s 512 of the FW Act, and the Commissioner did not raise any argument to the contrary. The notice directed Mr Sanchez to allow the Union organisers to enter the workplace in accordance with rights conferred by s 81(3) of the WHS Act.

64    On 28 March 2018, Mr Sanchez was issued with an Infringement Notice by the State Authority. The basis was that Mr Sanchez had failed to comply with the Improvement Notice by having Union officials removed from the workplace by police.

65    On 28 March 2018, the State Authority issued Mr Sanchez with another Improvement Notice in similar terms to the notice issued on 27 March 2018. An Improvement Notice was also issued to Ferrovial Agroman (Australia) Pty Ltd on 28 March 2018 in similar terms.

66    Similar Improvement Notices had issued on 9, 11 and 18 April 2018 to Seymour White Construction Pty Ltd, which was responsible for construction of improvements to the Bruce Highway, north of Brisbane. A dispute concerning entry onto that site eventuated in a judgment by Collier J in 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; (2019) 292 IR 259. Seven Union officials had entered a construction site pursuant to s 81(3) of the WHS Act. They had refused to produce entry permits and walked around parts of the site, failing to comply with site safety requirements by being unsupervised or unaccompanied. The Union and Messrs Pauls, Seiffert, Albert and Hynes, were respondents both in that case and in the present case.

67    In that case, the Commissioner sought declarations to the effect that the Union officials had acted in contravention of ss 494, 497 and 500 of the FW Act, as well as other relief. The Union contended that s 81(3) of the WHS Act did not create or confer a right to enter premises and that, properly understood, s 81(3) was merely facilitative. The Union argued that s 81(3) of the WHS Act did not create a “State or Territory OHS right” for the purpose of s 494(2) of the FW Act and that entry into premises under s 81(3) did not involve the exercise of rights in accordance with Part 3–4 of the FW Act, such that organisers were not required to show entry permits or leave the premises as requested by the occupier. The relevant State Minister intervened, supporting the position of the Union.

68    The Union’s submissions were rejected. Justice Collier held at [107] that s 81(3) of the WHS Act gave rise to an entitlement or authorisation which could legitimately be described as a right to enter premises. Her Honour considered that the judgment in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470, which had dealt with similar issues in respect of Victorian legislation, was not relevantly distinguishable. The judgment of Collier J was upheld in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203; (2020) 302 IR 106. An application for leave to appeal to the High Court of Australia was refused: Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner & Anor [2021] HCASL 60 (8 April 2021).

69    The timing of the conduct involved in the Bruce Highway Caloundra to Sunshine Upgrade Case has relevance to the present case. The conduct in that case occurred on 8 March, 20 March and from 9–13 April and 16–17 April 2018.

70    On 20 April 2018, in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2018] FCA 553, Collier J granted an urgent injunction restraining officials of the Union from exercising rights under s 81(3) of the WHS Act unless they were permit holders and produced their entry permits for inspection when requested to do so. Justice Collier noted at [5] and [16] that the respondents conceded that the Commissioner had demonstrated a prima facie case.

71    The contraventions in the present case were on 31 April, 1 May and 2 May 2018. They occurred within two weeks of the interlocutory injunction being granted by Collier J. It is not suggested by the respondents that the two cases are relevantly distinguishable.

72    Mr Kupsch deposes that at the time of the contraventions, both the Union and the State Authority maintained the position that organisers were not required to show entry permits, nor required to leave the premises as requested by the occupier if they failed to show their permits. Mr Kupsch deposes that this position was communicated to organisers, and that he gave that advice to each of the individual respondents.

73    Mr Kupsch also deposes that in light of the judgments in the Bruce Highway Caloundra to Sunshine Upgrade Cases, the Union accepts that the position it had previously taken was wrong. On 5 May 2021, a memorandum was sent to organisers directing them to act in accordance with the judgments in those cases. On 6 May 2021, the branch secretary addressed a meeting of all organisers and reiterated that organisers were required to act in accordance with the judgments and, if requested, had to show their permits when acting under s 81(3) of the WHS Act.

74    The Commissioner notes that while the individual respondents claim that they believed that they were lawfully entitled to act as they did, they have failed to provide affidavits deposing to that belief. That is true, but Mr Kupsch deposes that he told the organisers that they were not required to show entry permits and, if they failed show entry permits, were not required to leave premises when requested by the occupier. Mr Kupsch was not required for cross-examination and any submission that his evidence should not be accepted must be rejected.

75    Upon the available evidence, I make the following findings:

(1)    At the time of the contraventions, the Union believed or understood that the exercise of a right to entry under s 81(3) of the WHS Act was not a “State or Territory OHS right” for the purposes of s 494(2) of the FW Act, and that organisers were not required to have entry permits in order to enter premises, or show entry permits when requested, and were not required to leave when requested by the occupier.

(2)    The Union’s belief was consistent with the view taken by the State Authority. The State Authority’s view was demonstrated by the issuing of Improvement Notices and Infringement Notices when the occupiers of the Project refused entry to Union officials, and by the intervention of the State Minister in support of the Union’s submissions in the Bruce Highway Caloundra to Sunshine Upgrade Cases.

(3)    The Union’s belief was communicated to the organisers, and it should be inferred that they shared that belief.

(4)    The interpretation of s 494(2) of the FW Act of the Union and the State Authority was reasonably arguable.

(5)    However, at the time of the contraventions, the Union knew, or should have known, that its construction of s 494(2) was far from certain in circumstances where:

(a)    Powell had been decided in 2017 and the Victorian legislation considered in that case was arguably indistinguishable from the Queensland legislation.

(b)    On 19 April 2018, the Union conceded in the application for an injunction before Collier J, in circumstances relevantly indistinguishable from those in the present case, that the Commissioner had demonstrated a prima facie case of contravention of s 500 of the FW Act.

(6)    The Union, accordingly, knew that its officials were at risk of contravening ss 494(1) or 500 of the FW Act by entering the Project site without permits, or refusing to show their permits and refusing to leave the site when asked to do so.

(7)    Those individual respondents who were also respondents to the first and second Bruce Highway Caloundra to Sunshine Upgrade Case, Messrs Pauls, Seiffert, Albert and Hynes, must also have known that they were at risk of contravening ss 494(1) and 500 of the FW Act.

76    In these circumstances, I do not accept the Commissioner’s submission that the respondents knew that they were engaging in unlawful conduct, nor that the contraventions were deliberate and calculated. I accept that the Union and the individual officials had a genuine and reasonable belief that they were not contravening ss 494(1) or 500 of the FW Act by their conduct in respect of the Project site.

77    However, I also find that the Union and Messrs Pauls, Seiffert, Albert and Hynes knew that they were risking contravening those provisions, but decided to engage in that conduct regardless of the risk. There is no evidence that the remaining individual respondents knew that they were taking such a risk.

78    The respondents rely upon Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607, where Gordon J held at [18]:

[T]he breaches arose out of a disputed and disputable construction of the 2005 Enterprise Agreement and the TRA. Neither breach was flagrant, wilful or deliberate…These changes in industrial law have led to general deterrence being referred to as the “most significant factor” in determining the applicable penalty: see Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [60], [72]. Where the unlawful conduct arises out of an arguable but erroneous construction of a relevant term, and the subsequent breach cannot be characterised as demonstrating a flagrant or wilful disregard for the agreement, this legislative purpose is not furthered by imposition of a penalty. In these circumstances, neither general nor specific deterrence is a significant factor weighing in favour of imposing a penalty…

79    In Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480, I held at [15] that the above passage does not establish any general principle that where unlawful conduct arises out of an arguable construction of a relevant instrument there should be no penalty. However, I accepted that where a contravention of a civil penalty provision has arisen from a contravener’s honest and reasonable, but erroneous, construction of a relevant instrument, that is a powerful factor favouring the exercise of the discretion to decline to impose any penalty, or to limit the amount of any penalty.

80    In the present case, the construction of s 494(2) of the FW Act that formed the basis of the Union’s view that the organisers’ conduct would be lawful was always contestable. That is demonstrated by the decision in Powell and by the Union’s concession of a prima facie case in the application for an injunction in the first Bruce Highway Caloundra to Sunshine Upgrade Case. The Union could have avoided the risk of contravention by awaiting the outcome of that litigation and taking the simple step of directing its organisers to produce their entry permits in the meantime. The Union and Messrs Pauls, Seiffert, Albert and Hynes can be described as having “taken the odds”: cf. Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 at [100], [106].

81    Nevertheless, all the respondents had a genuine and reasonable belief that their conduct was lawful, and that reduces the seriousness of the contraventions.

82    There is no evidence that the respondents’ conduct disrupted any work or caused any economic loss to anyone.

83    There is no suggestion that the purpose of the respondents’ entries into the site was other than the bona fide purpose of attending discussions with a view to resolving the issues concerning safety. The Commissioner has not alleged, for example, that the safety issues referred to by the individual respondents when they attended the site were not genuine issues. It is not a mitigating factor that the respondents’ entries to the site were for a genuine purpose, but there was no aggravating factor of the absence of a genuine purpose: cf Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 at [124].

84    In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208, Bromwich  J observed at [128] that the primary proscription under s 500 of the FW Act is against a permit holder intentionally hindering or obstructing any person. His Honour explained at [129] that the proscription against acting in an improper manner is apt to apply to a broad range of conduct, and that the seriousness or gravity of such a contravention must be considered in light of the primary focus of s 500 being on intentional hindrance or obstruction. In the present case, the improper conduct consisted of the Union officials failing to produce permits and failing to leave when requested after having failed to produce their permits. These contraventions are not at the serious end of the range.

85    I assess the contraventions of Messrs Davis, Desmond, Davidson and Steele to be towards the low end of the range of seriousness. I assess the contraventions of the Union and Messrs Pauls, Seiffert, Albert and Hynes to be somewhat more serious, since they were aware of the risk of contravention that their conduct entailed, having been restrained by order of the Court from engaging in the same or similar conduct in respect of a different site in the first Bruce Highway Caloundra to Sunshine Upgrade Case.

Prior contravening conduct

86    The Commissioner relied, without objection, upon a schedule setting out previous penalties for contraventions of industrial laws by the Union and its officials. The schedule reveals nearly 180 cases.

87    There are many decisions of this Court which have described the Union’s history of contraventions of industrial laws. It has been said that unlawful conduct is normalised within the Union, that it does not care about the law and penalties imposed upon it and that the culture of contravening conduct is condoned by the Union’s senior leadership. The frequent imposition of heavy penalties has not altered the Union’s conduct. Although I have assessed the contraventions in the present case as towards the lower end of the spectrum of seriousness, the need for deterrence, in light of the Union’s history, requires that higher penalties be imposed than would otherwise be imposed.

88    The schedule relied upon by the Commissioner reveals the following contraventions by the individual respondents:

(a)    Mr Pauls — 23 contraventions of the FW Act in four separate proceedings;

(b)    Mr Seiffert — eight contraventions of the FW Act in one proceeding;

(c)    Mr Albert — one contravention of the FW Act in one proceeding;

(d)    Mr Hynes — a total of five contraventions of the FW Act in two separate proceedings;

(e)    Mr Desmond — two contraventions of the FW Act in one proceeding;

(f)    Mr Davidson — no previous contraventions;

(g)    Mr Steele — a total of 20 contraventions of the FW Act in two separate proceedings; and

(h)    Mr Davis —six contraventions of the FW Act or the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) in two separate proceedings.

89    Messrs Seiffert, Albert, Hynes, Desmond, Steele and Davis have been found to have contravened industrial legislation in either one or two previous proceedings. There was no submission suggesting that I should differentiate between those respondents. I consider that higher penalties should be imposed upon Mr Pauls, taking into account his greater history of contraventions; and a lower penalty should be imposed on Mr Davidson, taking into account his absence of any prior contraventions.

90    There is evidence that Messrs Pauls, Hynes, Desmond, Davidson, Steele and Davis are no longer employed within the Queensland and Northern Territory Branch of the Construction and General Division of the Union. They submit that this mitigates the need for specific deterrence. It was also said from the bar table that Messrs Davidson, Steele and Davis are no longer employed by the federally registered union and are employed by a State entity, so they will not be exercising any right of entry under the FW Act in the future. It was not explained what their present roles entail. Even assuming that these respondents are no longer employed by the Union itself, it was not asserted that they have left the sphere of union activity in the construction industry, and I infer that their work may bring them into contact with the requirements of the FW Act in the future. In my opinion, there remains a need for specific deterrence of future contraventions of the FW Act.

Early admissions

91    The respondents have not expressed remorse or contrition for their contraventions.

92    However, the respondents made their admissions at a very early stage. They are entitled to credit for the utilitarian value of their admissions. Their admissions have avoided the need for the Commissioner to serve any evidence and avoided a potentially lengthy trial. The respondents’ cooperation warrants reduction of the penalties that would otherwise be imposed.

Involvement of senior management

93    The evidence of Mr Kupsch indicates that the Union, at a senior level of management, took the view that the relevant conduct was not unlawful and disseminated that view to the organisers. It is apparent that there was a failure of senior management to instruct the organisers not to engage in similar conduct following the interlocutory injunction granted in the first Bruce Highway Caloundra to Sunshine Upgrade Case on 20 April 2018.

94    It is relevant and significant that the Union now accepts that its construction of s 494(2) of the FW Act was wrong and its senior management has instructed the organisers that they are to desist from the conduct involved in the contraventions.

Course of conduct

95    The Union has admitted that, by ss 550 and 793 of the FW Act, it committed each of the contraventions committed by the individual respondents.

96    The individual respondents engaged in six contraventions of s 494(1) and twelve contraventions of s 500 of the FW Act. Accordingly, the Union faces up to 18 penalties of up to $63,000 each.

97    However, the respondents submit that the Union’s contraventions arose from a single course of conduct. The respondents also submit that the following contraventions respectively arose from a single course of conduct:

•    Mr Seiffert’s contraventions on 30 April and 1 May 2018;

•    Mr Hynes’ contraventions on 1 and 2 May 2018; and

•    Mr Pauls’ contraventions on 30 April, 1 and 2 May 2018.

98    The respondents submit that these contraventions were factually and legally related as they involved the same worksite, the same type of contravening conduct, contraventions of the same provisions of the FW Act and were underpinned by the same erroneous conception of s 81(3) of the WHS Act.

99    The Commissioner submits that the application of the course of conduct principle is discretionary and that repeat offenders such as the Union are entitled to no leniency in the application of such discretionary tools of analysis. The Commissioner submits that the Union should receive 18 separate penalties. The Commissioner also submits that none of the individual respondents were engaged in any course of conduct.

100    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262, I gave the following summary of the course of conduct principle at [124]:

(1)    The purpose of the common law course of conduct principle is to ensure that, having regard to the circumstances (factual and legal), a party is not penalised more than once for the same conduct.

(2)    That phrase should not simplistically be adopted to transfer multiple contraventions into one contravention, or, necessarily, to impose one penalty by reference to one maximum amount.

(3)    The principle cannot, of itself, operate as a de facto limit on the penalty to be imposed.

(4)    The application of the principle must be informed by the particular legislative provisions relevant to the proceedings. In particular, weight must be given to the fact that the legislature has deliberately and explicitly created separate contraventions for each relevant action.

(5)    The application and utility of the principle must be tailored to the circumstances.

(6)    A judge is not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of contraventions.

(7)    The task is to evaluate the conduct and its course and assess what penalty is, or penalties are, appropriate for the contraventions.

(8)    It is necessary to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penalties, in order to avoid double punishment.

101    There are a number of commonalities involved in the Union’s contraventions of ss 494(1) and 500 of the FW Act. The contraventions arose from the same cause, namely the Union’s mistaken belief that the conduct of the organisers was lawful. The conduct was similar, involving entry onto the site without a permit, or entry with a permit but refusal to produce the permit and failure to leave when asked to do so. The purpose of the entries was broadly the same, namely to attend discussions with a view to resolving issues. The major difference was that the conduct occurred on three different days.

102    I consider that the Union should be taken to have engaged in three courses of conduct, one on 30 April 2018, one on 1 May 2018 and one on 2 May 2018.

103    The Commissioner submits that if the Union is taken to have deployed the organisers with a common purpose of engaging in prohibited conduct, it would add to the gravity of the contraventions, referring to the Adelaide Airport Case at [144]. However, the Commissioner has not disputed that the organisers attended the site for the legitimate purpose of resolving disputes pursuant to s 81(3) of the WHS Act. Therefore, the conduct is not of the kind referred to in the Adelaide Airport Case at [144].

104    I consider that Mr Pauls, Mr Hynes and Mr Seiffert should not be regarded as each having engaged in a single course of conduct. Their conduct occurred on different days. Their conduct on each day should be treated separately.

105    The contraventions committed by Mr Albert on 1 May 2018, and by Mr Davis, Mr Desmond, Mr Davidson and Mr Steele respectively on 2 May 2018 should be regarded as occurring within single courses of conduct.

106    The contraventions should be regarded as arising within the following courses of conduct:

    The Union — three courses of conduct (on 30 April, 1 May and 2 May 2018);

    Mr Pauls — three courses of conduct (on 30 April, 1 May and 2 May 2018);

    Mr Seiffert — two courses of conduct (on 30 April and 1 May 2018);

    Mr Albert — one course of conduct (on 1 May 2018);

    Mr Hynes — two courses of conduct (on 1 May and 2 May 2018);

    Mr Desmond — one course of conduct (on 2 May 2018);

    Mr Davidson — one course of conduct (on 2 May 2018);

    Mr Steele — one course of conduct (on 2 May 2018);

    Mr Davis — one course of conduct (on 2 May 2018).

107    It is adequate and appropriate to impose a single penalty upon each respondent for each separate course of conduct.

Conclusion as to penalties

108    Separate penalties should be imposed upon the Union of $25,000 for its contraventions on 31 April 2018; $25,000 for its contraventions on 1 May 2018; and $25,000 for its contraventions on 2 May 2018. The total of the penalties for the Union will be $75,000.

109    The following penalties should be imposed upon the individual respondents:

110    I do not consider that the total of the penalties imposed upon the Union and Messrs Pauls, Seiffert and Hynes is excessive: cf Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at [117]-[119].

Whether personal payment orders should be made

111    The Commissioner submits that personal payment orders should be made in respect of each of the individual respondents. The individual respondents oppose such orders.

112    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, Kiefel CJ at [49] and Keane, Nettle and Gordon JJ at [129] held that there is an implied power under s 546 of the FW Act to order, where a pecuniary penalty is imposed upon the union official, that the union official not seek or accept indemnity or contribution from the union. The power to make a personal payment order is discretionary. The purpose of such an order is deterrence.

113    The factors relevant to whether a personal payment order should be made include the objective seriousness of the contraventions and whether there is a need for personal deterrence: Australian Building and Construction Commissioner v CFMMEU (The Brooker Highway Case) (No 2) [2018] FCA 1214; (2020) 280 IR 356 at [28]–[29]; Australian Building and Construction Commissioner v Gava [2018] FCA 1480 at [92].

114    In this case, the reason for the contraventions by the individual respondents was a genuine and reasonable belief that the conduct was not unlawful. Their conduct did not involve wilful and deliberate contraventions of the law. Their belief that the conduct was not unlawful was engendered by the Union, which has since directed its organisers not to repeat that conduct. The individual respondents are unlikely to engage in contraventions of this particular kind again.

115    In the circumstances, I consider that it is not appropriate to make personal payment orders.

116    For the reasons I have given, I will impose the penalties described at [108]–[109].

117    The parties have not made any submissions as to costs.

Associate:    

Dated:    17 September 2021

SCHEDULE OF PARTIES