FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) [2021] FCA 1414

ORDERS

THE COURT ORDERS THAT:

1.    The Second Respondent is convicted of the several civil penalty offences contrary to s 500 of the Fair Work Act 2009 (Cth) (FW Act) pleaded in the Applicant’s Amended Statement of Claim as referred to below and in respect of each such conviction shall pay a pecuniary penalty as identified:

(a)    that pleaded at paragraph 65 as the first contravention: nil

(b)    that pleaded at paragraph 96 as the second contravention: $3,150.00

(c)    that pleaded at paragraph 108 as the fourth contravention: $2,520.00

(d)     that pleaded at paragraph 110 as the fifth contravention: $3,150.00

2.    The civil penalty offence pleaded by the Applicant at paragraph 101 as the Second Respondent’s third contravention be dismissed.

3.    The Third Respondent is convicted of the civil penalty offence contrary to s 500 of the FW Act pleaded by the Applicant at paragraph 101 of the Applicant’s Amended Statement of Claim and in respect thereof is to pay a pecuniary penalty in the sum of $3,780.00 wholly suspended on condition that he commit no further offence against any provision of the FW Act for a period of two years.

4.    In respect of the First Respondent’s derivative liability pursuant to s 793 of the FW Act for the contraventions for which the Second Respondent has been convicted, the First Respondent is convicted of the civil penalty offences contrary to s 500 of the FW pleaded at paragraph 124 of the Applicant’s Amended Statement of Claim, and in respect of those several contraventions, shall pay a pecuniary penalty as identified below:

(a)    the first contravention; nil

(b)    the second contravention; $15,750.00

(c)    the fourth contravention; $12,600.00

(d)    the fifth contravention; $15,750.00

5.    In respect of the First Respondent’s derivative liability pursuant to s 793 of the FW Act for the single contravention for which the Third Respondent has been convicted, the First Respondent is convicted of a civil penalty offence contrary to s 500 of the FW as pleaded at paragraph 124 in the Applicant’s Amended Statement of Claim and in respect of that conviction shall pay a pecuniary penalty of $18,900.00.

6.    The pecuniary penalties referred to in Order 1, Order 4 and Order 5 be paid to the Commonwealth of Australia within 28 days.

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

REASONS FOR JUDGMENT

KERR J:

1    This matter concerns the quantum of civil penalties the Court is to impose on:

(1)    The Second Respondent, Mr Paul Tzimas, who at all material times was and who remains employed as an organiser of the Construction, Forestry, Maritime, Mining and Energy Union (the Union) in respect of five admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) (the FW Act);

(2)    The Third Respondent, Mr Ronnie Buckley, who was similarly employed by the Union but who since has suffered incapacitating injuries as the result of an assault which have prevented him continuing in that role, in respect of one contravention of the FW Act; and

(3)    The Union in respect of its derivative liability for those breaches of s 500 of the FW Act.

It also concerns whether Mr Tzimas is to be prohibited from seeking to be indemnified by his employer, the Union, in respect of any penalty that might be imposed on him.

2    All of the relevant offending the Commissioner alleges occurred in respect of the involvement of Mr Tzimas and Mr Buckley in attending a worksite over a period of some six hours between 9:30pm on 3 December 2019 and 3:30am on 4 December 2019.

3    Section 500 of the FW Act is in the following terms:

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.

4    Mr Tzimas’ and Mr Buckley’s contraventions and the derivative liability of the Union have been established (subject to the Court’s acceptance that their alleged conduct was relevantly unlawful) by admissions they have made in their respective Amended Defences to the Amended Statement of Claim that the Applicant, the Australian Building and Construction Commissioner (the Commissioner), filed in this proceeding. All of those instances involve offending in respect of the second limb of s 500 of the FW Act. That is the Commissioner does not assert Mr Tzimas or Mr Buckley intentionally hindered or obstructed any person. Rather their offending as is alleged involved them, as permit holders, “otherwise act[ing] in an improper manner”.

5    The instances of offending conduct Mr Tzimas admits to, in short summary, all involve him, in the course of his exercising his right of entry to a major worksite for the purpose of ascertaining whether adequate safety arrangements were in place for, inter-alia, the lifting of five 16 tonne bridge beams, “acting in an improper manner” by reason of words he addressed either to a WorkSafe inspector or the police that had been called to attend the workplace.

6    Mr Buckley admits to one instance of offending in respect of words he directed to the police.

7    These proceedings involve the residue of what was originally pleaded by the Commissioner as a potentially much more serious case. As originally pleaded the Commissioner alleged 16 contraventions. Those that remain pressed in this penalty proceeding are effectively adjectival to others earlier alleged of a more substantive nature which are no longer relied upon.

8    That being so does not diminish the seriousness of the offending conduct in issue before the Court. The maximum penalty (as at the time of the relevant contraventions) available to be imposed on an individual for a single breach of s 500 of the FW Act is $12,600.00 and on the Union as a body $63,000.00. However, that the Commissioner no longer defends the premises of his original pleadings is relevant in relation to where on the scale of seriousness the Court should conclude the admitted contraventions of Mr Tzimas and Mr Buckley stand for the purpose of determining how their offending should be penalised. I explain below at [112]–[129] why I have come to that conclusion.

9    The relevant facts are no longer in dispute. They can be identified from the amended pleadings of the ABCC having regard to the relevant admissions made by the respondents and from that which Mr Tzimas deposes to in his affidavit affirmed on 27 August 2021. The latter was adduced into evidence by consent subject to three agreed redactions which I have taken care to avoid reliance upon.

THE FACTS

10    John Holland Pty Ltd became a joint venturer with CPB Contractors Pty. It did so in order to deliver the West Gate Tunnel Project in Victoria. The project involved, inter-alia, the widening of the West Gate Freeway and constructing a new bridge over the Maribyrnong River. The total cost of the project was $6.7 billion. Part of the project included works at “area 202A” located between Millers Road and Kororoit Creek Road (the worksite).

11    Members of the Union were employed by John Holland at the worksite.

12    On the evening of 3 December 2019 part of the Westgate Freeway had been closed in anticipation of major construction works proceeding overnight. The construction work was to involve lifting and installing five bridge beams each weighing about 16 tonnes. Brent Young Cranes had been engaged by John Holland as a contractor to undertake the lifting work.

13    In order to carry out that work a temporary scaffolding deck (about 4.5 meters above the ground and accessible by scaffold stairs) had been erected at the worksite “for the purpose of ensuring that each beam could land securely and safely prior to installation”.

14    Shortly prior to those lifts being undertaken some members of the Union had become concerned about its potential risks and dangers. Because there was no safety representative at the worksite, they requested Mr Tzimas (who had previously visited the worksite on many occasions) to visit the worksite to investigate the safety of the proposed lifts. Mr Tzimas and Mr Buckley responded to that invitation. Both were officers of the Union.

15    They arrived at area 202A at around 9:35pm on 3 December 2017 shortly after the public access to the West Gate Freeway had been shut off.

16    Mr Tzimas and Mr Buckley gained lawful access to the workplace. Each displayed their right of entry permit.

17    Mr Tzimas had appropriate qualifications and was licenced to perform high risk work. Not long after he came onto the site Mr Tzimas issued a notice of suspected contraventions. It referred to him suspecting “inadequate SWMS for the tasks being performed, risks associated with the works not all accounted for & SWMS not site specific: inadequate lifting gear in use. No risk assessment.”

18    It is common ground that the abbreviation “SWMS” is a reference to a “Safe Work Method Statement.” Mr Tzimas’ unchallenged evidence is that occupational health and safety regulations required all employers to prepare a SWMS before they commenced any high risk construction work that might pose a threat to the health or safety of their workforce.

19    Shortly after giving that notice to John Holland, Mr Tzimas and Mr Buckley climbed up to the scaffolding deck. They then remained there.

20    Mr Tzimas’ unchallenged evidence is that he and Mr Buckley moved to the scaffolding deck because they could not see from the ground the way workers would access the top of the five 16 tonne beams that were to be moved or where those beams would be landed to remove the lifting gear.

21    Mr Tzimas’ evidence is that from that vantage point he observed that the lifting slings which were to be used to move the beams looked discoloured and stained. That, his evidence is, indicated that hydraulic oil or fluid from the crane might have compromised their integrity or that they were old and had not been changed for a long time. Mr Tzimas’ unchallenged evidence is that if lifting slings are compromised or are too old they can fail during a lift. If that happened it would have caused the load to drop—and that it would have been very dangerous for a 16 tonne beam to fall onto people or the scaffolding deck.

22    Mr Tzimas asked to see the SWMS.

23    Mr Tzimas’ unchallenged evidence is that he and Mr Buckley declined to leave the scaffolding deck to inspect the SWMS paperwork and the lifting register from below (as they had been asked to by the works project managers) because had they done so they would not have able to match, by direct observation, whatever was stated in those documents.

24    Mr Banks, the worksite superintendent, and Mr Stojanovic, the worksite project manager, on behalf of John Holland, however refused to make available to Mr Tzimas and Mr Buckley the relevant paperwork whilst they remained on the scaffolding deck.

25    Lifting of the beams could not proceed while anyone was present on the scaffold deck other than “direct participants” who had been the subject of a safety induction. Such persons did not include Mr Tzimas or Mr Buckley.

26    A stand-off ensued.

27    The ABCC no longer presses its earlier case that by their having remained on the scaffolding deck, Mr Tzimas and Mr Buckley breached the FW Act by improperly stopping the works (moving the heavy beams) that John Holland had scheduled to be undertaken by its contractor Brent Young Cranes. It is now not in issue that the union officials, notwithstanding they had refused to leave the scaffolding deck to inspect the SWMS, remained at all times lawfully engaged in the exercise of an industrial right conferred on them by law. I am entitled to conclude that they were, inter-alia, permitted to be present at any location on the worksite which was necessary for them to investigate a risk to safety.

28    Their industrial entitlements extended to providing advice to their members as to whether or not the proposed lift constituted an imminent risk to their safety. As is relevant s 90(3) of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act) provides:

90 Limitations on exercise of powers

(3)     Nothing in subsection (2) prevents an authorised representative who reasonably believes that there is an imminent and significant risk of serious injury or death to one or more employees from waning the employee or employees of that risk.

29    In turn s 7(2)(c)(i) of the Building and Construction Industry (Improving Productivity) Act 2016 (the BCIIP Act) and analogous provisions of the FW Act exclude any liability for industrial action taken by members of a workforce if their industrial action is based on them having a reasonable concern about an “imminent risk” to their health and safety.

30    I am entitled to accept, the contrary not being contended for by the ABCC, that in the absence of the critical paperwork (including the SWMS) having been made available to Mr Tzimas and Mr Buckley they had a continuing right to insist on its production to permit them to satisfy themselves of the advice they should give to the employees who had asked them to attend the worksite as to whether the operation they would be involved in moving the 16 tonne beams might justify them having a reasonable concern about an imminent risk to their safety.

31    Mr Banks’ refusal to provide Mr Tzimas and Mr Buckley with the documents that they were seeking appears from the pleadings to have been premised initially on Mr Banks’ unwillingness to be filmed. It is not contentious that Mr Tzimas was making a film record of the events.

32    Whatever the objective reasonableness of Mr Banks’ reasoning in that regard may have been, having regard to the evidence I set out below, his objection to being filmed cannot be accepted to be a complete explanation for his side of the standoff.

33    There are only limited materials before the Court but such as are available suggests that the stubbornness of both sides was a product of a pre-existing low trust relationship.

34    Mr Tzimas’ evidence is that prior to his visit to the worksite on the evening of 3 December 2019 he had been “attending the West Gate Tunnel Project for about 18-20 months”. His unchallenged evidence is that on numerous occasions he had found that the SWMS for work activities being undertaken on the site had not matched up to the way the workers were in fact working.

35    His and Mr Buckley’s decision to remain on the scaffolding deck, I infer, bespeaks a lack of trust on their part that if they had not remained on the scaffolding deck John Holland and its contractor might have started lifting the beams immediately without waiting for them to complete their enquiries relevant to its safety.

36    The Court is also entitled to infer, perhaps because of their pre-existing history, but in any event, that Mr Banks and Mr Stojanovic were sceptical about the legitimacy of the concerns Mr Tzimas and Mr Buckley had been called onto the worksite to respond to.

37    They were frustrated because the planned lifting of the beams Brent Young Cranes had been engaged to undertake was being delayed because of the presence of Mr Tzimas and Mr Buckley on the scaffolding deck. I am prepared to draw those inferences having regard to what the Commissioner pleads at 51B(a) to (c) of the Amended Statement of Claim as appears in these reasons at [40].

38    Rather than providing Mr Tzimas and Mr Buckley with the paperwork they wanted to see those who were responsible on John Holland’s behalf for the management of the worksite requested the police and a WorkSafe inspector to attend.

39    First to arrive at the worksite were two officers of Victoria Police: Sgt Quirke and Const Penny. They arrived at the worksite around 11:30pm. By that time the stand-off between Mr Tzimas and Mr Buckley on the one hand and Mr Banks and Mr Stojanovic on the other already had extended for some two hours.

40    Sgt Quirke climbed to the scaffolding deck. He spoke with Mr Tzimas and Mr Buckley. The nature of their conversation and its sequel is set out at paragraphs 49 to 51B of the Amended Statement of Claim as follows;

49. Quirke asked what the issue was around safety on Site and Tzimas and Buckley said words to the effect that:

(a)     there were inadequate SMWS;

(aa)     they had explained to John Holland that under s 89 of the OHS Act they could inspect any plant, substance or thing at the place;

(b)     they were being hindered and obstructed;

(c)     they had provided ample opportunity to John Holland to bring the lift paperwork up to the scaffold deck to discuss the issues and they were refusing to do so;

(d)     they needed to see the lift paperwork so that they could be satisfied that it was correct;

(e)     there were inadequate safe systems of work, which included the work process, in regards to concrete installation;

(f)     under s 21(2) of the OHS Act, John Holland needed to maintain safe systems at all times;

(g)     there was inadequate maintenance in regards to lifting hardware and inadequate lifting hardware was being used;

(h)     they were concerned that there were no separate rescue procedures for this high-risk part of the job;

(i)     they wanted to make sure the workers were working within the SWMS;

(j)     they had not yet been able to inspect the lifting gear;

(k)     they were asking for another means of access and egress;

(l)     they were more than happy to work through the issues so works could commence.

50.     Buckley said to Quirke that “We've done everything down to a legislative T here. And we're doing everything down to a legislative T and continue to do so.”

51.    Tzimas and Buckley remained on the scaffold deck following this exchange after Quirke told them that he would go and ask Banks where the requested paperwork was.

51B.     Following the exchange in paragraph 51:

(a)     Quirke said to Banks and Stojanovic, referring to Tzimas and Buckley (who were not present) “they’re not going to go offsite in a hurry” and asked “do you have a copy of the paperwork they reckon they wanna see, is it on site?”;

(b)     Banks responded: “Yes it is, but I don’t wanna show it to them up here. I wanna start lifting these beams in, I can’t do it safely in here with those guys there”;

(c)     Stojanovic said: “That’s been the whole game they’ve been playing all night”;

(d)     Quirke responded: “Yeah, I get that”;

(e)     Stojanovic said: “While they were down there, the paperwork was there and said if you wanna have a look at it, and they stormed straight up here”;

(f)     Quirke said to Banks and Stojanovic words to the effect that the quickest thing would be for them to bring the paperwork up to Tzimas and Buckley;

(g)    Stojanovic said: “Is it – the problem is though, you know, like we’ve got to get off this road at 3.30 in the morning and they will just sit here and review the paperwork until 3.30 knowing that we can’t lift when the paperwork’s been approved by WorkSafe. And WorkSafe have been involved in all the rescues, WorkSafe have been everywhere here. That’s – that’s where – that’s the game, so”;

(h)     Banks said to Quirke words to the effect that he would bring the paperwork up if Tzimas and Buckley “put that fucking camera away” because he did not give the officials permission to film him and felt intimidated by them. Banks then took a phone call;

(i)     Quirke then left Banks and Stojanovic and walked over to Tzimas and Buckley. He told Tzimas and Buckley that Banks would bring the paperwork up if Tzimas turned his camera off and Tzimas said that he would;

(j)     After Banks finished his phone call he said: “Gary said to bring WorkSafe up here, so bring them up here and go through the work area and deem what’s safe.”;

(k)     Banks did not bring the paperwork up to the scaffold deck and the parties continued to wait for the WorkSafe inspector to arrive.

41    There was nothing beyond firm politeness in Mr Tzimas’ and Mr Buckley’s responses to Sgt Quirke. They explained that, on their understanding, their conduct was entirely correct and authorised by law.

42    Despite, as is pleaded at [51B(i)] of the Amended Statement of Claim, that Mr Tzimas agreed to cease filming after Sgt Quirke told him that Mr Banks would bring him the paperwork if he agreed to not film him, Mr Banks and Mr Stojanovic remained unwilling to provide the documents they had asked to see.

43    Instead they elected to wait for a WorkSafe inspector who John Holland had informed about the stoppage to arrive.

44    The WorkSafe inspector, Mr Drury, arrived at around 12:15am. After arriving at the worksite Mr Drury approached Mr Tzimas and Mr Buckley and, it is pleaded, “reminded them of the obligation under the OHS Act that any information obtained through video recording could only be used for a purpose connected with a power under the OHS Act.”

45    Given that there had been nothing to suggest any different intent on their part and that Mr Tzimas, at Sgt Quirke’s suggestion, had earlier agreed to stop filming if he and Mr Buckley were provided with the documents they were asking for perhaps that might not have been the most helpful start.

46    Mr Drury then asked Mr Tzimas and Mr Buckley to explain what their suspected contravention of the OHS Act was. His question prompted a rebuke from Mr Tzimas to the effect that he didn’t need to talk to Mr Drury about that and that he should take that question up with John Holland. No doubt that response was equally unhelpful.

47    Mr Tzimas’ response is pleaded in the Commissioner’s Amended Statement of Claim (see [65]) as an integer of the first allegation advanced by the Commissioner that Mr Tzimas acted in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act.

48    I infer Mr Drury then left the scaffolding deck. In any event it is uncontentious that he was later provided with a copy of the notices of the suspected contraventions of the OHS Act which Mr Tzimas had given to John Holland.

49    There then was a conversation between Mr Drury and Sgt Quirke. What was said is set out at paragraph 58B of the Amended Statement of Claim;

58B.     Drury looked at the notices and had an exchange with Quirke to the following effect:

DRURY: I’ve just spoken to our controller. If there’s no immediate risk on site, alright, they essentially can’t stop anybody from working, alright. I’m going to ask them to move to a safer location so these guys can resume work, we can talk about this [gesturing to the notices of suspected contravention] in this office. If they don’t wanna move, can you guys move them on to a safer location? Because essentially that’s, it’s unlawful what they’re doing.

QUIRKE: If you’re telling me it’s unlawful I’ll move them.

DRURY: Because, yeah so that’s the information that I got from my controller. There is no immediate risk on site, they do have a suspected contravention and that suspected contravention we can deal with, and I can move back and forth to site, however it’s in their best interest to move to a safer location so works can resume while we deal with this issue because there is no immediate risk. So I’m going to ask them that, if they don’t want to, are you happy to move them on?

QUIRKE: We have to.

50    Having spoken to Sgt Quirke in those terms Mr Drury then returned to the scaffold deck to speak with Mr Tzimas and Mr Buckley. He asked them to move to a “safer location…so these guys can resume work”.

51    To that proposition Mr Tzimas responded “so you want them to keep working, and you don’t even know what the issues are.” Mr Tzimas added “why don’t you go and tell 30 blokes that its ok with one single access that’s missing kickboards with no rescue procedure and then we’ll have the discussion. No we’re not doing that”.

52    Mr Drury then stated “we’re going to deal with the issue” but if he had been intending to clarify that he was cut off by Mr Tzimas who spoke words that form the second integer of the first allegation advanced by the Commissioner that Mr Tzimas acted in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act. Those words were:

If you want to be a lap dog—if you want to be a lap dog to John Holland and to get the works done, without addressing the issues, that’s up to you. We’re not going to take a step back when it comes to our members’ safety.

53    Mr Drury then left the scaffolding deck to make enquiries into the suspected contraventions “including by speaking with John Holland employees” on the worksite. However he took no steps to view the SWMS. About a half an hour later Mr Drury then spoke to Sgt Quirke to the following effect;

63.     …

QUIRKE:     So by forcing work to stop is that committing an offence under the Act?

DRURY:     Correct.

QUIRKE:     That’ll do me.

DRURY:     So if there’s immediate risk we have to form the… come down and see if it’s supported or not. If it’s not immediate risk they essentially can’t stop work, so this is why I say let’s move down, let’s go have a chat. I think basically what they are saying is that um if what happens if there’s a catastrophic… the crane falls over. It’s the same thing as saying what happens if there’s an earthquake, do you know what I mean? They’ve got all of their documentation, they’ve got all their geotech reports, they’ve got everything. They’ve got their emergency response, they’ve done mock rescues, you know. So they’ve got all the documentation to support that. So there’s no reason why these guys should be here essentially stopping work. And they are standing in an area where they now in a situation where they can’t continue to work.

54    The Commissioner pleads that after Mr Drury had spoken with John Holland representatives and having “made a phone call” he informed Sgt Quirke that if there was no immediate risk on site, it was an offence by an authorised representative to hinder and obstruct an employer from performing their duties. He told Sgt Quirke that he intended to “inform Tzimas and Buckley that there was no immediate risk” on the worksite.

55    However it is to be observed that although originally pleaded as a substantive contravention the Commissioner does not now press that the offence Mr Drury advised the police (hindering or obstructing John Holland) in fact had been committed by Mr Tzimas and Mr Buckley.

56    There followed a further conversation between Mr Drury and Mr Tzimas. Its terms are pleaded by the Commissioner at [64] of the Amended Statement of Claim:

64.     Tzimas and Drury then had an exchange to the following effect:

DRURY: Okay. All right. So - - -

TZIMAS: No. No point in talking to you. You're worried about getting the works going. There's no point in talking to you. Not interested in what you've got to say.

DRURY: I'm happy to go downstairs, you can have a look through all the documentation.

TZIMAS: No, all right.

DRURY: So I will just let you know though, all right, so it is an offence for an ARREO, for the record, right - - -

TZIMAS: Yeah.

DRURY: Right. I did not give you permission to film me.

TZIMAS: So what? That’s alright.

DRURY: I've already explained it to him [Quirke], he knows what I - what I wanted to say. So I'll leave it at that. All right.

TZIMAS: All right. There's nothing to discuss with you anyway.

DRURY: So I'm going to go downstairs. I'm going to have a look at all the documentation - - -

TZIMAS: Do what you want to do, it's got nothing to do with us.

DRURY: - - - and I'll go through all the contraventions however, there's no immediate risk on site.

TZIMAS: Yeah, of course there's not.

DRURY: No immediate risk on site.

TZIMAS: You haven’t even conducted an investigation yet and you’re already making that assessment. I wonder why? I wonder how that works?

57    The words Mr Tzimas directed at Mr Drury during that conversation provide the third of the integers of the first contravention the Commissioner alleges that Mr Tzimas had acted in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act.

58    His relevant offending is pleaded to have involved (in a rolled up way involving multiple instances as are cited at [65(b)] of the Amended Statement of Claim) Mr Tzimas “having spoken in a dismissive and rude manner towards Mr Drury, including accusing him of acting inappropriately”.

59    That offending is admitted to by Mr Tzimas but it is significant in respect of penalty that Mr Bourke, on behalf of the Commissioner, concedes (Transcript P9 lines 19-31) that in the sequence of events Mr Drury had jumped the gun when informing Mr Tzimas and Mr Buckley that there was no imminent risk to the workers’ safety. At that point of time Mr Drury had yet to avail himself of the opportunity to inspect any of the materials (including the SMWS) which Mr Tzimas and Mr Buckley were asking to see.

60    Mr Bourke’s concession, as a matter of factual chronology, was inevitable given the terms of [67] of the Amended Statement of Claim.

61    The Commissioner’s Amended Statement of Claim then details a number of further conversations that ensued between the police and Mr Tzimas and Mr Buckley. No contraventions are pleaded in respect of those exchanges. I interpolate that police were commendably careful, notwithstanding having they had been advised by Mr Drury that Mr Tzimas and Mr Buckley had no legitimate right to remain on site, not to act in haste.

62    During those conversations Mr Tzimas and Mr Buckley defended their stance as consistent with their lawful industrial rights. Their position, as they explained it to Sgt Quirke and Const Penny, is well captured by the terms of a conversation pleaded at [72] of the Amended Statement of Claim.

72.     Tzimas, Buckley, Quirke, and Penny then had an exchange to the following effect:

BUCKLEY: My entry is under section 89. I've done everything down to a legislative T.

QUIRKE: No problem at all. And you've been informed by the workplace inspector - - -

TZIMAS: No, he actually didn't inform us of anything for the record.

BUCKLEY: No, he spoke to you.

TZIMAS: He refused to talk to us, and we disagree with what he's saying. We have every right to be here, and under our powers that (indistinct) it openly says we can advise our members not put themselves at imminent risk. We're not contravening anything.

PENNY: The WorkSafe inspector said that there isn't an imminent risk.

TZIMAS: That's his opinion. Our opinion is different. He hasn’t even checked the paperwork, he hasn’t addressed the issue or heard our side of the story.

63    In the event the stalemate continued. The police took no action. Mr Tzimas and Mr Buckley remained on the scaffolding deck.

64    After coming down from the scaffolding deck Const Penny asked Mr Banks whether, if Mr Tzimas and Mr Buckley would agree to go downstairs to look at the paperwork, he would allow them to return to the scaffolding deck to check the details they needed to see from that vantage point. Mr Banks had responded that he was not going to talk to the officials while they filmed him which made him feel intimidated.

65    There is no mention in the pleadings of Mr Tzimas’ earlier offer to cease filming provided Mr Banks agreed to permit him to see those documents.

66    At about 2:05am on 4 December further members of the Victorian Police, including Sen Sgt West, arrived at the worksite. By that time the stand-off was already in its fifth hour.

67    In the presence of Sgt Quirke and Sen Sgt West, Mr Banks asked Mr Tzimas and Mr Buckley to leave the worksite “on the grounds that they had been intimidating” while on the site.

68    Again it is significant that no case is pleaded by the Commissioner, and no submission is advanced by Mr Bourke, that Mr Tzimas and Mr Buckley “had been intimidating”. If that is to be understood as a reference to Mr Tzimas filming the relevant events no point is taken by the Commissioner that his having done so was for a purpose outside of that which was authorised by the OHS Act.

69    Mr Tzimas responded to Mr Drury that “that’s not reasonable grounds to leave site on. You have hindered and obstructed us for six hours and we still haven’t viewed any SWMS”.

70    However it is uncontentious that what next happened is that Sgt Quirke and Sen Sgt West informed Mr Tzimas and Mr Buckley that:

(a)    they had been asked by the occupier of the site to leave the site;

(b)    the WorkSafe inspector had advised VicPol that there was no immediate risk and the site was safe; and

(c)    if they did not leave they would be arrested and removed from the site.

71    Mr Tzimas and Mr Buckley disputed that analysis.

72    Mr Tzimas responded to Sen Sgt West and Sgt Quirk that Mr Drury “didn’t even conduct his investigation first of all before he made that assessment…secondly we still have right to inspect anything, plant or substance we have enquired about”.

73    Mr Buckley explained to Sgt Quirke and Sen Sgt West that he and Mr Tzimas could not usefully review the SWMS from the office because they could not check if the work was outside of the SWMS without seeing things such as the barcodes on the lifting gear.

74    Nothing that Mr Tzimas or Mr Buckley then said to the police in the course of their asserting their industrial rights is alleged by the Commissioner to have taken their conduct beyond their lawful entitlements.

75    Nonetheless, and sensibly in the face of their advised prospect of arrest, Mr Tzimas and Mr Buckley agreed to leave the worksite, however parting with the observation by Mr Buckley that he and Mr Tzimas would be entitled to re-enter and provide a further notice of a suspected contravention of the OHS Act.

76    Which is what he and Mr Tzimas did.

77    The Commissioner does not dispute Mr Tzimas’ and Mr Buckley’s lawful entitlement to have re-entered the worksite.

78    Having done so at approximately 2:20am Mr Buckley issued Mr Banks with a further notice of suspected contravention of the OHS Act. In it he referred to what he suspected to be a contravention as “inadequate systems of work in regards to concrete element installation, inadequate lifting gear and maintenance” and “inadequate SWMS, fall protection”.

79    Mr Banks accepted that notice but again raised concerns about being filmed. Mr Tzimas responded that he felt threatened by the number of police on the site. For that reason he would continue to film.

80    Mr Banks then told Mr Tzimas and Mr Buckley that he would not let them onto the worksite.

81    The pleadings do not allow any insight into how the subsequent events transpired but what they do reveal is that a John Holland employee moved away from the entry point and Mr Tzimas found himself able to gain access to the scaffold stairs. He climbed those stairs and resumed a position on the scaffolding deck.

82    Mr Buckley remained at ground level.

83    Sgt Quirke followed Mr Tzimas up to the scaffolding deck. Sgt Quirke told Mr Tzimas he needed to get off. The pleadings reveal the following exchange took place;

91.    Quirke immediately followed Tzimas and said to him that he needed to get off the scaffold. Tzimas told tells Quirke “Youse are complicating it by being here” and “What knowledge to you have of what immediate risk is? What’s your credentials to make that call? Some goofy WorkSafe Inspector? Did you even ask him what his credentials are? Is he even construction background?” Quirke and Tzimas also had the following exchange:

TZIMAS: all you’re doing is implicating yourself in hindering and obstructing a lawful right of entry.

QUIRKE: they’ve closed this off for a reason.

TZIMAS: why is it closed off? Why are you getting involved in their shit? Why are you getting involved with safety with John Holland? What’s it got to do with you? Safety has got nothing to do with you …when WorkSafe is here, I don’t understand why you’re still here …don’t get involved in things that don’t concern youse.

91B.     Quirke requested Tzimas to remove himself from the platform and advised Tzimas that his presence was preventing them continuing work. Tzimas refused.

91C.    Tzimas also said to Quirke words to the effect that it was a reasonable request for the SWMS to be brought to where the work was being conducted with the affected work group so they could go through it.

84    While that was all happening Mr Buckley who had remained at the foot of the scaffolding stairs informed Mr Drury about the new notice of a suspected contravention he had issued.

85    Mr Drury responded to Mr Buckley that he “had already dealt with” the issues identified in the notices. On seven occasions Mr Drury repeated to Mr Buckley that there was no immediate risk on the worksite.

86    The Commissioner does not plead, and Mr Bourke does not submit, that the opinion expressed by Mr Drury was correct or that its expression terminated the entitlement of Mr Tzimas and Mr Drury, after their lawful re-entry, to have insisted on remaining for the purpose they were asserting a legal entitlement.

87    However it is clear that the police, caught up in the middle of a contest of industrial rights which by then had dragged on for six hours, and influenced perhaps by Mr Drury’s status as a WorkSafe inspector, became satisfied that was the true position. I make no criticism of Sen Sgt West or any other of the police; given Mr Drury’s repeated assertions of that premise the course they took to be consistent with the legal position is entirely understandable.

88    Sen Sgt West asked Mr Drury to accompany him up to the scaffold deck to explain the position they planned to take, on his advice, to Mr Tzimas. That conversation, as was initiated by Sen Sgt West, is pleaded as follows:

95.     After about 10 minutes, Drury and West walked up the scaffold stairs to speak with Tzimas and had an exchange to the following effect:

WEST: Right. He's just going to explain something to you.

TZIMAS: I don't care what he's got to say. I'm not interested.

WEST: Well, we are. We are.

TZIMAS: Well, he can talk with youse. I'm not interested.

WEST: We are. Will you just tell - explain that to him again and then we'll get him to move on off.

DRURY: At this point in time, I don't believe there's no immediate risk.

TZIMAS: I don't care what you've got to say. You already made that assessment, before you even came down.

…

DRURY: There is no immediate risk.

TZIMAS: I don't even care what you've got to say.

WEST: Ok, just explain it to him for the purpose of us please.

TZIMAS: I’ve got a right to go and consult my members, please get out of my way. You’re hindering and obstructing me from consulting with the affected workers under my powers.

WEST: Can you just explain it to him, don’t worry what he says.

TZIMAS: I don’t care what he’s got to say about imminent risk, I’ve still got a right … have I not got a right to inspect any thing, plant or substance I’ve enquired about?

DRURY: This is no immediate risk.

TZIMAS: I don’t care what you’ve got to say. Have I not got a right to inspect anything plant or substance I’ve inquired about in the Act.

DRURY: I'm asking you I’ve asked you to come downstairs to go through the documentation.

TZIMAS: I don't care. I don't care. We're not - we're not on that same ARREO anymore. We got kicked out. We got kicked out. Right. And now we've had to come back in, and it's about the scaffolding and the access. So what's stopping me from inspecting the kickboard that's missing, and the handrails aren't right.

DRURY: Okay.

TZIMAS: But you're not interested in going through it, because you're just interested in getting their job going.

DRURY: I've said what I needed to say.

TZIMAS: Get the tape and start measuring, because it should be 900 maximum and 450 off that” (in reference the height of the handrails on the scaffold deck).

WEST: Okay.

TZIMAS: Right. So why won't you conduct the inspection, because you're corrupt; that's why.

89    It is clear that Sen Sgt West proceeded on the understanding that once Mr Drury had (a) formally stated his opinion that there was no immediate risk, and (b) had communicated that opinion to Mr Tzimas, those factors were sufficient to bring to an end the industrial rights that Mr Tzimas and Mr Buckley were asserting. The opinion of Mr Drury expressed in his capacity of a WorkSafe inspector had settled the issue.

90    However, it is again significant that the correctness of that proposition is not advanced in the Commissioner’s pleadings or defended by Mr Bourke in his submissions.

91    What the Commissioner pleads instead is that Mr Tzimas’ responsive words which he uttered after he had failed to persuade Sen Sgt West that whatever Mr Drury’s opinion he and Mr Buckley retained their lawful entitlement to investigate a suspected convention of the OHS Act, to the effect that Mr Drury was just interested in getting the job going and had not even conducted an inspection “because he was corrupt” is the second instance of Mr Tzimas exercising his industrial rights in an improper manner.

92    Despite the Commissioner’s pleadings correctly characterising Mr Tzimas’ conduct in using those words as in the course of his exercise of industrial rights Mr Tzimas was nonetheless, as a result of the police’s different understanding, escorted off the site by Sen Sgt West and Sgt Quirke at approximately 2:30am on 4 December 2017. There is no suggestion that Mr Tzimas sought to resist or challenge the police in the course of his being removed.

93    I infer that Mr Buckley voluntarily exited at around the same time to avoid that necessity. Nothing is pleaded to suggest otherwise. The events next pleaded place him outside of the worksite.

94    After Mr Tzimas had been escorted from the worksite by the police significant frustrations, particularly on Mr Buckley’s part boiled over.

95    From outside of the worksite Mr Tzimas and Mr Buckley began to prepare yet further notices of suspected contraventions by John Holland of the OHS Act. I infer that they remained subject to the watchful attention of the police. In any event it is pleaded by the Commissioner at [100] of the Amended Statement of Claim that while writing out their notices they respectively directed certain comments to Sen Sgt West and other VicPol officers as follows;

100.    …

BUCKLEY: You’re… you’re outside your jurisdiction gentlemen.

TZIMAS: Youse stopping us from giving them an ARREO. Is that right? Under what powers?

BUCKLEY: Whose… Whose on the John Holland’s payroll boys? You as well? I thought it was only WorkSafe. Surely not in Australia?

TZIMAS: Disgrace. Absolute disgrace.

BUCKLEY: Corruption at its finest.

TZIMAS: If one of our members gets hurt or gets killed, it’s on youse.

BUCKLEY: That’s what I was saying before, there should be legal recourse for police as well in that circumstance. If someone gets hurt now due to failure, because I’ll be coming to see every one of youse and give you legal recourse for what you’ve done here today, yeah.

TZIMAS: Did you see the WorkSafe Inspector, didn’t even measure the scaffold.

BUCKLEY: Did nothing. Did nothing. Taxpayers dollars at its best. Defending a tyrant.

96    The words they respectively spoke are pleaded as the third contravention by Mr Tzimas, and the sole contravention by Mr Buckley, in respect of their having exercised industrial rights in an improper manner.

97    I will return to the exchange in due course but again it is significant that the Commissioner does not advance any case that Mr Tzimas or Mr Buckley had, even at that point, ceased to be in the exercise of their industrial rights notwithstanding Mr Tzimas earlier had been compelled by the police to exit the worksite.

98    What followed was that Mr Buckley issued Mr Banks with a further notice of suspected contravention of s 89 of the OHS Act. How he achieved that from outside the premises is not clear. What is clear is that he and Mr Tzimas had been refused access to the worksite by Sgt Quirke.

99    I infer that it was Sgt Quirke who refused their access having regard to it being pleaded by the Commissioner that Mr Tzimas spoke to Sgt Quirke saying “you’re acting as a lap dog for John Holland denying us our rights to represent out workers.”

100    That statement is pleaded as the basis of the fourth contravention of s 500 of the FW Act by Mr Tzimas.

101    A short while afterwards Mr Tzimas approached Mr Drury. He spoke to Mr Drury. The words he used were that it “exposes you for your incompetence…you’re a disgrace”.

102    The Commissioner pleads those words as the foundation of Mr Tzimas’ fifth contravention of s 500 of the FW Act.

103    At about 3:00am on 4 December 2019 Mr Tzimas and Mr Buckley finally left the worksite. By that time work for the evening involving the lifting of the 16 tonne beams had been abandoned.

The sequel to the pleaded events

104    The events of the following evening are deposed to by Mr Tzimas in [83]–[87] of his affidavit of 27 August 2012.

105    Mr Tzimas’ uncontested account is as follows:

The night of 4 December 2019

83.     Ronnie and I returned to the site on the night of 4 December 2019.

84.     Don met us and explained various changes that John Holland had made to address the concerns that we had raised the night before, including:

(a)     a bubble crane had been brought onto the site to provide a second means of access and egress to the scaffold deck and rescue procedure from the scaffold deck;

(b)    the height of the handrails on the scaffold had been raised;

(c)     there were new lifting slings; and

(d)     lighting to the access way had been increased.

85.     [not pressed].

86.     Don brought the SWMS to us and explained the changes John Holland had made to Ronnie and me on the ground and then Don took up to another area of the site from which we could look down onto the scaffold deck from next to the crane. The discussion with Don made us feel comfortable that John Holland had made sufficient changes to address our concerns.

87.     We were only on site on this evening for about an hour. The way the issues we raised on the night of 4 December 2019 were dealt with was the way I was hoping they were going to be dealt with the previous night.

I infer Mr Tzimas’ reference to “Ronnie” to be a reference to Mr Buckley and his reference to “Don” to be a reference to Mr Banks.

106    The fact that the changes Mr Tzimas refers to at [84(a)] –[84(d)] of his affidavit had been made before the lift was commenced the next day, I accept, does not prove that had the lifts proceeded the previous evening as John Holland had intended, that a degraded sling would have snapped or that some other mishap would have occurred as would have endangered the safety of the employees involved in moving the 16 tonne beams. Perhaps the work might have proceeded uneventfully.

107    Nonetheless the fact that those very significant changes were made in the aftermath of the events of the previous evening and prior to the lift proceeding the next night is consistent with Mr Tzimas and Mr Buckley having had an entirely legitimate basis for their “persistence” in asserting the industrial rights they had been exercising—notwithstanding the assurance of Mr Drury, his not having examined the relevant documents they were asking to inspect, to the contrary.

108    Absent Mr Tzimas’ and Mr Buckley’s persistence and determination in the circumstances facing them the lift of those five heavy 16 tonne beams would have proceeded without any of those changes having been made.

109    It is entirely speculative as to what might have happened in that event but I take it to be significant that the Commissioner does not seek to defend the correctness of Mr Drury’s conclusion that there had been no imminent risk to Mr Tzimas’ and Mr Buckley’s members’ safety.

110    Nor does the Commissioner plead or Mr Bourke submit that after Mr Drury had formed that view and had communicated it to them, that had terminated the legal entitlements they continued to assert.

111    I have referred to on a number of occasions that the Commissioner has not pleaded and Mr Bourke has not submitted that certain conduct of Mr Tzimas and Mr Bourke was contrary to their industrial rights. It should be understood that I am not asserting that either the Commissioner or Mr Bourke had such an obligation. The Commissioner’s case stands, for its worth, without that. However absent it being put in issue this Court is entitled to proceed on the basis that the rights Mr Tzimas and Mr Buckley were asserting existed and were being lawfully exercised. That is no more than is inherent in the nature of any penalty proceeding. As Gleeson CJ, Gaudron, Gummow and Hayne JJ observed, albeit in a somewhat different context but equally appositely, in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 at [31]:

…the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it.

THE APPROPRIATE LENS OF ANALYSIS

112    An important threshold issue that the Court is required to resolve is the lens through which the circumstances of the relevant conduct of Mr Tzimas and Mr Buckley is open to be viewed with respect to the setting of penalties.

113    Counsel for the Commissioner Mr Bourke QC, acknowledges that the Court is entitled to approach the case on the basis that both Mr Tzimas and Mr Buckley were lawfully the holders of entry permits, were lawfully attending the worksite, and that each had spoken the words they admit to in a context which they had been concerned about the safety of the members they represented. However, Mr Bourke submits that there is clear authority binding on the Court to the effect that a reasonable belief regarding safety cannot be a mitigating factor in the assessment of the objective seriousness of a breach of the FW Act.

114    On behalf of the respondents, Mr Doyle submits that mitigation is not what is at stake in this case. Rather, he submits, in determining where within the available range of seriousness the admitted contraventions of Mr Tzimas and Mr Buckley fall to be determined, the actual context in which those words were spoken in which they had had such a reasonable belief, goes not to mitigation but to the anterior question of where on the scale of conduct deserving of punishment the words they spoke out of frustration are to be assessed. The concerns they had about safety they were lawfully present to investigate cannot sensibly be divorced from the circumstances of their offending.

115    That context, Mr Doyle submits, includes that the words Mr Tzimas and Mr Buckley used as involved them “acting in an improper manner” were uttered in circumstances in which they had, for many hours, been denied access to documents that they had requested to inspect as would have allowed them to fulfil their lawful entitlement to advise, or not advise, the workers on the site that there was an imminent risk to their safety; and that those to whom they had directed pejorative language were involved in removing them from the worksite notwithstanding they had a legal right to persist until they were satisfied the worksite was safe.

116    Because of the significance of that difference it is convenient to address at the threshold the appropriate lens through which the seriousness of Mr Tzimas’ and Mr Buckley’s offending is properly open to be viewed.

117    While Mr Bourke is undoubtedly correct to submit that the pursuit of a legitimate industrial purpose by an offending union official will not itself be mitigating I am satisfied that the cases that have established that general proposition do not provide an answer to the question posed by Mr Doyle. Those cases have turned on very different facts. Thus in Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 White J at [125] explained why, in the facts before him, a concern about safety was not mitigating. That was because while a union official might have a legitimate industrial reason for entering a worksite, that circumstance cannot be relevant in reducing the seriousness of a refusal to produce on request a lawful entry permit. The statutory scheme in the FW Act as provides for permit holders to exercise rights of entry where safety and other issues might arise, which White J had earlier described in detail at [19] – [39] of his reasons, is premised on a lawful purpose being available to be exercised. To permit the existence of a concern about safety to operate in mitigation of a refusal to produce an entry permit would fatally undermine the balance that the legislation provides for. To similar effect is the reasoning of Rangiah J in Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 at [72]. His Honour then held that the respondents’ coercive conduct was not mitigated by the fact that the conduct was directed to the pursuit of a legitimate industrial objective.

118    Neither of those cases or indeed any of the plethora of other authorities to which I have been referred to by Mr Bourke address an issue analogous to that which arises in these proceedings. On the facts pleaded by the Commissioner in the Amended Statement of Claim, what distinguishes this case from that line of authority is that not only were the initial purposes of Mr Tzimas and Mr Buckley lawful, but so too was their presence throughout.

119    In the actual events of what is in issue in these proceedings I accept as Mr Doyle submits, mitigation is not what is at stake in this case. I am entitled to distinguish the above line of authority on the basis that rather than lacking lawful entitlements Mr Tzimas and Mr Buckley were being hindered in their exercise of those legitimate industrial rights by the persons to whom they directed their respective intemperate remarks as they have admitted to be contraventions of s 500 of the FW Act.

120    On the pleadings before the Court the lawful entitlement of Mr Tzimas and Mr Buckley to represent the industrial and safety issues of the workforce, for which provision is made in the FW Act, was then being challenged rather than respected.

121    I have noted that Mr Bourke does not suggest that either Mr Drury’s formation of the opinion that there were no relevant safety issues as would entitle the officials to have continued having access to the worksite, or that the conclusion having been communicated to them and having been given practical effect to by the police, had, in fact or law, terminated the industrial rights they were exercising.

122    The declarations the Commissioner asks the Court to make are themselves premised on the Commissioner’s acceptance of the legitimacy of the officials’ continued presence: Mr Tzimas’ and Mr Buckley’s conduct is referred to in the draft declarations as having occurred on each occasion “in the course of their exercising rights in accordance with Part 3-4 of the FW Act”.

123    This case is thus to be distinguished from the usual run of cases of misconduct alleged by the Commissioner.

124    Mr Bourke submits that whatever the position may be, Mr Tzimas’ and Mr Buckley’s offending warrants high levels of penalty because they had been “persistent” over a period of some six hours. That both Mr Tzimas and Mr Buckley were persistent in insisting on their industrial rights must be acknowledged. However that was their entitlement. Earlier iterations of the Commissioner’s pleadings as would have put their substantive rights in issue are no longer pressed. In any event Mr Tzimas’ and Mr Buckley’s persistence is only one side of the coin. Their persistence would not have been necessary had they been promptly provided with the SWMS they were asking to see and had been able to check that there was compliance. Mr Tzimas’ evidence that there had been earlier examples of non-compliance is not challenged.

125    In Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 384 ALR 75 (Pattinson) a majority of a five member Full Court (Allsop CJ, White and Wigney JJ) reasoned that it is the deterring of contraventions of the kind before the Court to which the Court must have regard in fixing the appropriate penalty. That is to be done with reference to the maximum penalty set by the Parliament and with “reference to the nature, character and full context of the contravening conduct”, at [98], [100] (emphasis added).

126    Situating Mr Tzimas’ and Mr Buckley’s admitted contraventions (and the derivative liability of the Union) within the penalty framework provided for in the FW Act with reference to the nature, character and full context of their contravening conduct, in the actual circumstances applying, requires the context in the round to be taken into account by a court forming a judgment as to where on the continuum of seriousness of offending as might be involved in a breach of s 500 of the FW Act is to be situated.

127    For the above reasons I am satisfied that Mr Doyle must be correct to submit, that in contradistinction to the ordinary run of circumstances as White J gave attention to in the Adelaide Airport Case, the reasonableness of Mr Tzimas’ and Mr Buckley’s concerns about safety in the present proceeding is not merely a contingent consideration not open to be taken into account in mitigation.

128    In this case Mr Tzimas’ and Mr Buckley’s offending, its nature, character and seriousness, cannot be comprehended in the round without acknowledging the centrality of their lawful rights having been resisted and not acknowledged by those they admit in their respective defences they had directed inappropriate language towards.

129    In the particular, perhaps unique, circumstances of this case, I am also satisfied that the evidence of Mr Tzimas as to the events of the next evening is contextually relevant to his and Mr Buckley’s earlier conduct. It permits it to be understood in the round. That evidence is relevant to the context in determining the penalties to be imposed on them for the contraventions they respectively admit to while exercising their rights in accordance with Part 3-4 of the FW Act.

WHAT PENALTIES ARE TO BE IMPOSED

Mr Tzimas

His personal circumstances as factors in mitigation

130    Mr Tzimas has a clean record in respect of any prior convictions for contraventions of the FW Act. He is entitled to be sentenced as a first offender by the Court when assessing penalties.

131    His personal circumstances however have altered since the events of December 2019. On 30 June 2020 Mr Tzimas suffered significant injuries in a violent incident that also affected Mr Buckley rendering Mr Buckley incapable of resuming his work for the foreseeable future. They were assaulted while attempting to exercise their entry rights on another worksite. As a result of his injuries Mr Tzimas was off work for some 3 months.

132    Mr Tzimas’ evidence is that during that period he undertook extensive therapy with a trauma specialist and a psychologist to relearn how to manage his emotions and regulate his emotional responses. His evidence is that he has been able to use the techniques he learnt in therapy to help him manage his emotions and frustrations on the job.

133    As well as his extensive range of formal training relating to occupational health and safety as he deposes to at [11]–[21] of his affidavit in October 2020 and August 2021 Mr Tzimas has also undertaken one-on-one training conducted by Brian Lacy AO on behalf of the Union relevant to his controlling his emotions on the job. His evidence as appears most relevant in that regard is as follows:

89.     Brian has given me some examples of things I can do to avoid similar contraventions in future. For example, Brian said that I can take detailed notes about what happened and report the event, for example, to WorkSafe to conduct an internal review. I can also advise management (or WorkSafe or the Victoria Police) that that is what I intend to do and remove myself from the situation, instead of getting backed into a corner.

90.     I have already had a chance to put into this into play in a similar scenario recently where the Police were called and threatened to arrest me for trespass or issue me with a move on order if I did not leave a worksite which I had entered to enquire into suspected contraventions of the OHS Act. I calmly explained that I had a right to enter under the OHS Act, but then left the site willingly and didn’t get emotional or speak badly to the Police.

91.     Brian also helped me with the emotional side the job and my feeling that everything is stacked against unions and union officials under industrial and work health and safety legislation. We talked about how I need to accept that and deal with it and he helped me to see that I need to do things to avoid these types of situations occurring in future. This included staying on track with the issues and not getting caught up in the emotional and confrontational side of things and to not take the bait or be provoked in a confrontational situation.

92.     The building industry is a very robust industry. There is use of colourful language from all participants. However, the industry is moving towards a culture welcoming younger people in, welcoming women in, so it needs to be an environment that makes people feel as comfortable as possible so that they want to join and contribute to the industry. As union officials, we are leaders among construction workers. Our members look to us to set examples and want to be represented in a light where their union doesn’t fall subject to the stereotypical negative image of a unionist. We are obligated to try to conduct ourselves in a way where we do our membership proud and deliver a safe workplace for them without falling subject to those negative criticisms for something as simple as name calling—it’s easier just not to do it. I regret involving the CFMMEU in unnecessary litigation.

…

99.     I don’t want to give media organisations who have a bent against unions and the CFMMEU in particular the chance to have a shot at me and the CFMMEU ever again. I also do not want to be in a position where I could potentially lose my right of entry permit, which will stop me from being able to represent CFMMEU members effectively. I understand that the Fair Work Commission will be required, subject to a narrow exception, to suspend or revoke my entry permits due to my contraventions. I think the work I do for CFMMEU members, particularly in relation to health and safety, is very important and I need to do better to ensure that I don’t lose my cool and speak out of turn like that again. I am committed to ensuring I do not say things like I said on the early morning of 4 December 2019 again while exercising entry rights.

100.     I think that I am now much better equipped to ensure that I do not act in an improper manner while exercising entry rights again. I have a better understanding of what the law requires of me as a result of my training with Brian. I am also better equipped to manage my emotional reactions.

134    His evidence is that he regrets the way he spoke to both the WorkSafe inspector and the police.

135    In respect of Mr Drury his evidence is that he recognises now that the way he spoke to him was not acceptable and that he accepts the WorkSafe inspector was just trying to do his job, even if he didn’t agree with the way he was going about it. He says his regret has been demonstrated through his changed conduct. More particularly with respect to Mr Drury he states:

73.     I regret the way I spoke to the WorkSafe inspector. If I had my time again, I would not speak to him rudely or dismissively and definitely would not have called him a ‘lapdog’ and or a ‘disgrace’. That was not an acceptable way to speak to him and I recognise he was just trying to do his job, even if I didn’t agree with the way he went about it. Given the amount of verbal abuse we experience on the job, I regret subjecting someone else to insulting language…

136    In respect of the police Mr Tzimas refers to his having felt at the time that he had been hindered and obstructed for at least 5 hours. He was extremely frustrated when he had spoken rudely to them. His evidence is that he regrets having done so:

82.     I should not have taken that frustration out on the Police. I do understand that they are just trying to do their job. I wouldn’t speak like that again to the Police and I haven’t when I have interacted with them since. I regret the way I spoke to them.

137    Nothing in his evidence is challenged by the Commissioner.

138    I am satisfied I am entitled to find that Mr Tzimas genuinely regrets his offending conduct. I am satisfied that I am entitled to find he has taken serious and positive steps towards self-awareness of how to handle stressful situations which significantly reduces his prospects of further offending.

139    I am satisfied that I am entitled to have regard to both those circumstances, particularly in respect of specific deterrence, in mitigation.

The First contravention

140    There are three elements of what the Commissioner pleads as constituting Mr Tzimas’ first contravention. The integers of that alleged offending are as I have respectively referred to at [46], [52] and [56] above.

141    Mr Tzimas by his defence admits the words he used and that he is to be convicted therefore.

142    That acknowledged this Court must not impose a civil penalty if it is not satisfied that the conduct alleged relevantly falls within the offence provision said to have been breached: relevantly in this instance that Mr Tzimas’ conduct involved a contravention of s 500 of the FW Act by his acting in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act.

143    It is not disputed by Mr Tzimas’ counsel, Mr Doyle, and I accept, that a “speech act” may qualify as an act by a person “acting in an improper manner” while exercising rights in accordance with Part 3-4 of the FW Act.

144    However as to whether a particular speech act amounts to acting in an improper manner within the meaning of s 500 is not to be equated with any mere absence of politeness. As counsel for the Commissioner, Mr Bourke, accepts “there needs to be a recognition that there can be some level of robust discussion” in contradistinction to where there might be “complete denigration and attack of one’s character by way of suggesting corruption and incompetence.”

145    The difficulty of establishing precisely where such a line is to be drawn in any particular case does not mean that such a line does not exist.

146    In my view the only integer of Mr Tzimas’ alleged offending as advanced in support of the first contravention of s 500 that rises to a level which might in law warrant a conviction is that as is contained in the language he used as is cited at [52] above.

147    I accept as noted at [46] that the rebuke Mr Tzimas directed to Mr Drury which is the gravamen that first integer (to the effect that he didn’t need to talk to Mr Drury about the industrial rights he and Mr Buckley had asserted and that he should take that question up with John Holland) was hardly helpful.

148    It would have been far more conducive on his part to have put Mr Drury in a receptive frame of mind had Mr Tzimas fully explained, as he later did with Sgt Quirke, the basis of his and Mr Buckley’s lawful entitlement to be present at the worksite and why they had located themselves on the scaffold deck.

149    However nothing in Mr Tzimas’ remarks as pleaded as the first integer of his first contravention, amounts, in my view, to more than his robustly (and correctly) asserting that his and Mr Buckley’s industrial rights were not contingent on Mr Drury’s opinions and that Mr Drury should inform himself of the facts before seeking to give directions to them about what they had a right to do.

150    In that regard it is not in dispute that as at that time Mr Drury had, to Mr Tzimas’ knowledge, taken no steps to look at any of the materials he and Mr Buckley had been asking to inspect, but had been denied access to, for more than three hours.

151    A similar analysis applies with respect to the conversation that subsequently took place between Mr Tzimas and Mr Drury as is set out at [56] above which forms the third integer of the first contravention alleged by the Commissioner. It may have been less than polite for Mr Tzimas to have said that he was not interested in talking to Mr Drury because he was “worried about getting the works going” but in circumstances in which Mr Drury had still yet to give any attention to the suspected contraventions of the OHS Act that Mr Tzimas and Mr Buckley had given notice of, or to examine the documents they had been denied access to, I reject that those speech acts come within the statutory language of “acting in an improper manner”.

152    I am satisfied the same applies to Mr Tzimas’ ironic response to Mr Drury’s statement that he would go through all the contraventions notwithstanding he had already satisfied himself without regard to those documents. Irony is not a criminal offence and the Commissioner does not seek to defend the correctness of Mr Drury’s conclusion. Mr Bourke in his oral submissions conceded that there can be criticism of the way a workplace inspector goes about his work provided it does not cross the line to a complete denigration of his or her character.

153    On behalf of the Commissioner Mr Bourke instances as within that which would cross the line an assertion of corruption or incompetence. I accept the former but reject that the latter inherently falls within the statutory language of “acting in an improper manner” at least if such an assertion is advanced on a plausible foundation and is not otherwise accompanied by denigrating abuse.

154    But whether the latter qualification is correct is immaterial. I am, in any event, unpersuaded that either the first or third integers of what the Commissioner identifies as Mr Tzimas’ offending conduct, as a matter of law, were “speech acts” capable of satisfying the statutory language in s 500 of the FW Act of “acting in an improper manner”.

155    I do not dismiss that a disdainful want of cooperation by a permit holder with respect to a WorkSafe inspector might, in different factual situations involve a permit holder in “intentionally hinder[ing] or obstruct[ing]” another person and so come within the first limb of s 500 of the FW Act. But that case is not this case. No allegation against Mr Tzimas has been advanced on that basis.

156    That leaves the second integer of what the Commissioner pleads as the foundation of Mr Tzimas’ first contravention conduct: the words he directed at Mr Drury as are set out at [52] above.

157    It will be recalled that on that occasion Mr Tzimas directed the following towards Mr Drury:

If you want to be a lap dog—if you want to be a lap dog to John Holland and to get the works done, without addressing the issues, that’s up to you. We’re not going to take a step back when it comes to our members’ safety.

158    In contrast to what I have concluded with respect to the two other integers advanced I accept that Mr Tzimas’ remark was a “speech act” capable of constituting his “acting in an improper manner” for the purposes of s 500 of the FW Act.

159    I am satisfied that in the facts pleaded by the Commissioner the line Mr Bourke accepts to exist was crossed. This is notwithstanding that his words did not convey a direct accusation. Rather they were conditional; commencing with the word “if”. Nonetheless it would be over-literal not to accept that they would have conveyed some not insignificant degree of offence. Because Mr Tzimas admits that he made that remark and he admits his offending it is proper he be convicted of that contravention.

160    However Mr Tzimas’ offending in that regard comes nowhere near that which might constitute the most serious instance of the conduct proscribed by s 500 of the FW Act. Although Pattinson is subject to special leave in the High Court, it is not suggested by Mr Bourke that I am to follow what the Full Court of this court determined in that case viz that the maximum penalty is only to be imposed for most serious and grave of contravening conduct.

161    Bromberg J’s observations in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 at [45] (The Laverton North and Cheltenham Premises Case) provides some guidance in locating where on the scale of seriousness of offending I am to place Mr Tzimas’ offending conduct.

45     Where the contravention of s 500 is the result of a permit holder acting in an “improper manner”, the extent to which there has been an interference with the right of occupiers of the premises to go about their business without undue inconvenience, has an obvious bearing upon the objective seriousness of the contravention. The characterisation of a contravention as at a low or high level of seriousness necessarily involves comparisons. Very serious contraventions readily come to mind and include the prolonged disruption of work or conduct which imperils the safety or wellbeing of those that occupy the premises including, as an example, an assault or other forms of violence. Conduct of that kind is likely to be objectively very serious and deserving of penalties at the higher end of the range. A contravention of s 500 involving a minor disruption upon the capacity of occupiers to go about their usual business or a temporary loss of the peaceful enjoyment of the occupancy is less likely to warrant the characterisation of being an objectively serious contravention.

162    It is not to trivialise the inappropriateness of Mr Tzimas’ language to recognise that Mr Tzimas’ offending did not involve any physical or verbal act of intimidation. It involved no threats. It disrupted nothing that Mr Drury was lawfully entitled to undertake in his distinct role in the securing of a workplace’s safety.

163    Further understood in context it was responsive to Mr Drury’s having advanced the proposition (for which Mr Bourke offers no defence) that his opinion had the effect of overriding his and Mr Buckley’s industrial rights.

164    In my view Mr Tzimas’ conduct in the first of his contraventions so understood stands if not at, then towards, the lowest end of any “acting” as potentially comes within the prohibition provided for in s 500 of the FW Act.

165    Mr Tzimas’ words involved him taxing Mr Drury with uncalled for rudeness but only on the premise that Mr Drury was prepared to allow the moving of the 16 tonne beams to proceed even before he had taken any step to address the issues he and Mr Buckley had raised. That was the true sting of his words.

166    That premise, as Mr Bourke accepts, was consistent with the factual chronology of events.

167    The words Mr Tzimas used were spoken not to hinder or obstruct Mr Drury in the conduct of his duties but in defence of his and Mr Buckley’s own entitlements. He was engaged in maintaining that he and Mr Buckley had discrete industrial rights which they were entitled to continue to pursue. Mr Tzimas was insisting, correctly, that he and Mr Buckley were not required to step back on Mr Drury’s say so when it came to the rights they were exercising in respect of their members’ safety.

168    The Commissioner’s written submissions advance the proposition that it is important to the effective operation of the OHS Act that a WorkSafe inspector who has been requested to attend a site to enquire into an issue under the OHS Act should be treated with due deference and respect. That may be accepted.

169    But so too any permit holder who has been requested by his or her members to attend a site (so long as they are lawfully asserting an industrial right) should be entitled to be treated with due deference and respect. Instead Mr Drury proceeded on the basis, without having examined the documents that they had been seeking to satisfy himself that the works were being conducted in accordance with the SWMS, he could simply direct Mr Tzimas and Mr Buckley to desist.

170    Mr Drury is not a party to this proceeding so his viewpoint cannot be interrogated. I refrain from any conclusions beyond that necessary to resolve the issues before the court on the pleadings and evidence before me but Mr Bourke points to nothing in the law that had required Mr Tzimas and Mr Buckley to give “deference” to Mr Drury’s opinion that there was no imminent risk of safety to the workforce generally; and, in the facts pleaded, particularly when the relevant opinion was expressed prior to his having taken any steps to inspect the relevant SWMS for the beam lift.

171    Having regard to the circumstances of Mr Tzimas’ offending as I have discussed above, my conclusion is that his offending conduct sits at the lowest end of that which is prohibited by s 500 of the FW Act. Taking into account Mr Tzimas’ status as a first offender, his contrition and his having undertaken personal and specifically designed counselling which it is not disputed by the Commissioner have resulted in his having learned how better to control his emotions in stressful circumstances I am satisfied that the requirements of specific and general deterrence will be adequately met if the Court’s disapproval of Mr Tzimas’ first contravention is manifested by convicting him of the offending the Commissioner alleges. It is unnecessary to impose a pecuniary penalty.

The Second contravention

172    The second contravention the Commissioner alleges concerns words Mr Tzimas spoke after he had failed to persuade Sen Sgt West that whatever might be Mr Drury’s opinion he and Mr Buckley had retained their lawful entitlement to investigate a suspected convention of the OHS Act. The full detail of the relevant conversations is set out at [88] above.

173    It will be recalled that Sen Sgt West had called upon Mr Drury to come with him to the scaffold deck and inform Mr Tzimas of his opinion that there was no immediate risk to the workers safety. He had told the police that in that circumstance Mr Tzimas and Mr Buckley had no legitimate right to continue pressing their asserted industrial rights. Confronted with those circumstances Mr Tzimas responded to the effect that Mr Drury was just interested in getting the job going. Mr Drury had not conducted an inspection “because you’re corrupt”.

174    I acknowledge that the words Mr Tzimas spoke were doubtless spoken at a time of high tension: the police were then relying on Mr Drury’s opinion and analysis with respect to their announced intention to remove him from the worksite. However, while that context may explain Mr Tzimas’ frustration it cannot condone his conduct in uttering those words. Mr Tzimas’ direct assertion that Mr Drury was corrupt constituted a speech act, which, as Mr Bourke submits, I accept, plainly crossed the line of that what was fairly (or even unfairly but lawfully) open as criticism of Mr Drury’s conduct.

175    It need hardly be said that in contrast with Mr Tzimas’ earlier remarks, which I have found as “speech acts” fell within the lowest bound of the range of potential offending, a direct allegation that Mr Drury, a WorkSafe Inspector, was willing to risk the safety of employees as a result of corruption, cannot be characterised as other than a grossly wrongful instance of an official “acting in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act.”

176    The allegation Mr Tzimas made in the presence of others (including the police) involved a complete denigration of the WorkSafe inspector’s character.

177    I accept, given the examples that Bromberg J identifies as I have referred to at [161] above, that Mr Tzimas’ offending (not involving violence, threats or a risk to safety of others), even in that circumstances is not open to be adjudged as close to the worst example of potential offending against s 500 of the FW Act as might occur, but I reject that Mr Tzimas’ contravention was not a serious one.

178    Even taking into account Mr Tzimas’ status as a first offender, his contrition and his having undertaken personal and specifically designed counselling which have resulted in his having learned how better to control his emotions in stressful circumstances I am satisfied that the requirements of deterrence cannot adequately be met if the Court’s disapproval of Mr Tzimas’ first contravention is manifested simply by convicting him of the offending the Commissioner alleges.

179    Those mitigating factors nonetheless significantly lessen the requirement for Mr Tzimas’ punishment to include a significant component based on the necessity for specific deterrence. As Mr Doyle submits, and I accept, it has been highly unusual for a permit holder who has been charged by the Commissioner with any such an industrial offence to express remorse. It is much to Mr Tzimas’ credit that he has seen fit to do so. Moreover on the uncontested materials before it as I have discussed above at [132]–[138], there are sound reasons for the Court to accept not only that Mr Tzimas has resolved not to repeat his behaviour but also that he has learned to employ methods of controlling his emotional reactions as make it plausible that he will succeed in that resolve. It is not disputed that he has since had dealings with Mr Drury in the industrial setting in which each have conducted themselves, if not in agreement, at least with appropriate respect for the other’s role.

180    General deterrence nonetheless remains significantly relevant. It must be adequately accommodated. However in that regard I refer what I have recorded earlier regarding the lens through which Mr Tzimas’ offending is properly to be viewed.

181    It is not merely that at that time Mr Tzimas had a genuine belief that his members safety was at risk. Nor is it that but for his “persistence” to that point that serious harms may have eventuated.

182    It is also that in the actual context applying, the Court is entitled to take into account that Mr Tzimas was then himself being hindered in the exercise of his legitimate industrial rights as a permit holder by the person to whom he directed that offensive remark.

183    Given Mr Tzimas’ initial response to Mr Drury after he had first come onto the site there may be an element of un-self-examined retrospect in what Mr Tzimas deposes to at [69] of his affidavit, but he is surely correct that he was entitled to have expected, that “we should all be pulling in the same direction when it comes to safety” rather than being confronted Mr Drury telling him to desist prior to his having even inspected the relevant SWMS.

184    That Mr Tzimas was frustrated and angered by Mr Drury’s conduct; and even that he might doubt Mr Drury’s motivation in that context, was hardly surprising. That he yielded to that frustration after he was about to be escorted from the site in consequence of Mr Drury’s unexamined opinion having been acted on by the police is, in that context, material to what is required in respect of general deterrence.

185    A penalty grounded in general deterrence should, while operating to dissuade others of the consequences of similarly offending, not ignore such a context. It should recognise the exceptional nature of the circumstances that Mr Tzimas found himself in.

186    Determining an appropriate penalty is not an exact science. There is not a single correct judicial response: Volkswagen Akiengesellscgaft v ACCC [2021] FCAFC 49 at [217] (Wigney, Beach and O’Bryan JJ). In my view, having taken into account all of the considerations I have referred above I am satisfied that both specific and general deterrence will be sufficiently accommodated in the circumstances of this contravention by the Court imposing a pecuniary penalty (25% of the maximum) of $3,150.00.

The Third contravention

187    It will be recalled that the circumstances of the third contravention the Commissioner alleges and Mr Tzimas admits arose after he had been escorted off the worksite by the police. It is pleaded by the Commissioner at [100] that while he and Mr Buckley were writing out a further notice of suspected contraventions of the OHS Act by John Holland they had directed comments to Sen Sgt West and other VicPol officers. The words Mr Tzimas directed at the police as pleaded are as follows;

100.    …

TZIMAS: Youse stopping us from giving them an ARREO. Is that right? Under what powers?

…

TZIMAS: Disgrace. Absolute disgrace.

…

TZIMAS: If one of our members gets hurt or gets killed, it’s on youse.

…

TZIMAS: Did you see the WorkSafe Inspector, didn’t even measure the scaffold.

…

188    I have had considerable difficulty in apprehending how any of those four “speech acts” taken individually or as a composite, notwithstanding Mr Tzimas has admitted to the alleged contravention that is pleaded, in law constitutes a breach of s 500 of the FW Act.

189    I earlier noted, as Mr Bourke accepts, “there needs to be a recognition that there can be some level of robust discussion” in contradistinction to where there might be “complete denigration and attack of one’s character by way of suggesting corruption and incompetence.”

190    The Court must not impose a civil penalty if it is not satisfied that the conduct alleged relevantly falls within the offence provision said to have been breached: relevantly in this instance that Mr Tzimas’ conduct involved a contravention of s 500 of the FW Act by his acting in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act.

191    It is to be accepted that Mr Tzimas’ remarks were robust, even vehement. However nothing he said was in terms personally abusive or offensive.

192    His remarks were directed towards what he was maintaining was wrongfulness of his having been escorted off the worksite in the circumstances in which it had occurred. He was entitled to express a robust opinion. Nothing he said involved defiance of on order of the police or a threat. His conduct did involve him hindering or obstructing them. The words “disgrace, absolute disgrace” are no more than a strong statement of his opinion regarding the outcome that had been arrived at. I reject that those words involved, in Mr Bourke’s usage, a “complete denigration and attack of [the police’s] character by way of suggesting corruption and incompetence”. Indeed they involve no attack based on character.

193    Even accepting that in one of his remarks Mr Tzimas can be understood to be asserting that the consequences of any injuries that might occur if the work proceeded would be the responsibility of the police I discern nothing in that “speech act” (which is Mr Tzimas’ relevant conduct) capable in law to support the Court finding that he was then “act[ing] in an improper manner” within the meaning of s 500 of the FW Act.

194    It is to be recalled that the Commissioner does not defend the correctness of the legal basis for Tzimas’ removal from the worksite by the police.

195    I accordingly decline to record a conviction for the third alleged contravention. In the facts alleged I am not satisfied that Mr Tzimas’ conduct involved a contravention of s 500 of the FW Act by his acting in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act. Lest on review I be concluded to be wrong in that regard and a conviction is required I record, that in view of the nature of those remarks, their want of any personal abuse and Mr Tzimas’ expression of remorse, I would impose no pecuniary penalty.

The Fourth contravention

196    The fourth pleaded contravention by Mr Tzimas occurred when he had been denied further access to the worksite by Sgt Quirke. That was after he had been escorted from the site by the police and notwithstanding he had made known his intention of exercising his right of entry as a permit holder and then serving a further notice of suspected contravention on John Holland. When he had been denied access to the site Mr Tzimas spoke to Sgt Quirke saying “You’re acting as a lap dog for John Hollands denying us our rights to represent our workers.”

197    In contradistinction to the matters alleged as the foundation for his third contravention I am satisfied that the words Mr Tzimas then uttered in law are sufficient to constitute an instance of his acting in an improper manner. They imputed a base motive to Sgt Quirke for his conduct. There was no justification at all for that. Moreover, Mr Tzimas must himself have known that was an entirely unfair characterisation. While the Commissioner does not defend the basis of Mr Drury’s advice to the police upon which they had ultimately acted Mr Tzimas of all people must have been aware that Sgt Quirke had not simply taken John Holland’s side. To the contrary Sgt Quirke in particular had earlier taken every step available to him to try to persuade the management of John Holland to provide him and Mr Buckley with the documents they were asking for in order to bring to an end the stand-off that had arisen while he was on the scaffold deck.

198    However in the scale of offending as might constitute such a contravention I am satisfied that the conduct pleaded as Mr Tzimas’ fourth contravention is towards the lower end. Mr Tzimas’ words did not obstruct Sgt Quirke in the conduct of his duty as he understood it. Accepting they nonetheless imputed a base motive to Sgt Quirke, and perhaps the police more generally, the words he used were not as grossly offensive as had been the words he had earlier directed towards Mr Drury.

199    I need not repeat what I have said in respect of the issues of general and specific deterrence at [178]–[185]. I incorporate them by reference.

200    In my view both specific and general deterrence will be sufficiently accommodated in the circumstances of this less serious but still significant contravention by the imposition on Mr Tzimas of a penalty (20% of the maximum) of $2,520.00.

The Fifth contravention

201    A short while after being refused access to the worksite Mr Tzimas approached Mr Drury and spoke to him stating that it (sic) “exposes you for your incompetence…you’re a disgrace”. It is that statement which the Commissioner pleads as the foundation of Mr Tzimas’ fifth contravention of s 500 of the FW Act.

202    Contextually there is little or nothing available to mitigate this instance of Mr Tzimas’ offending. His remark was not offered in the course of his defence of his and Mr Buckley’s contested rights. Mr Drury may have earlier erred in his understanding of the law and having taken the course that he took (and I accept he did so) but all of that was well prior to this occasion and I have taken those circumstances fully into account when imposing penalties for Mr Tzimas’ previous contraventions.

203    What Mr Tzimas did in this later event was to launch an unprovoked attack on Mr Drury’s character for no reason. It was an act of uncalled for and gratuitous abuse.

204    The lens through which his earlier offending was open to be viewed had ceased to be relevant. His language was not that of a person identifying incompetence in which such a claim was contextually justified—it was direct abuse: he (Mr Drury) was a disgrace.

205    While I accept, applying my earlier reasoning as set out at [161] above that his contravention cannot be concluded to rise to near the most serious and grave instance of that which can amount to an offence in respect of s 500 of the FW Act, nonetheless what Mr Tzimas did by directing that gratuitous abuse at Mr Drury was a significant misuse of his rights as a permit holder. However it was not of the same degree of offensiveness as his having earlier referred to Mr Drury (in the course of asserting the industrial rights Mr Drury had concluded no longer availed him) as corrupt.

206    Accepting all that can be said in Mr Tzimas’ favour as applies to specific deterrence, general deterrence still requires that a significant financial penalty (albeit not at the highest end of the scale) be imposed. Notwithstanding the lesser degree of offensiveness of the words Mr Tzimas uttered on this occasion compared to those he had earlier directed toward Mr Drury, given his conduct was unprovoked and gratuitous I will impose the same penalty of (25% of the maximum) $3,150.00 as I imposed in respect of that earlier contravention for this contravention.

Course of conduct, totality, indemnification and extrinsic consequences

207    I am satisfied that to impose the penalties I have determined for each contravention I have found to established will not involve any doubling up. Each event was discrete in time and context.

208    Neither am I of the opinion that the totality principle has any work to do. The penalties I have imposed are not such as to add to a sum disproportionate to Mr Tzimas’ offending taken as a whole.

209    Mr Bourke submits that I should make an order as would require Mr Tzimas’ employer not to indemnify him.

210    I accept the Court has that power and that I have a discretion to make such an order but the exercise of any discretion turns on a circumstance as might warrant it. Asked to identify that which might justify the exercise of that discretion Mr Doyle points only to the appalling industrial record of contraventions by his employer. That the Union has an appalling record is not disputed. However I address later in these reasons why I have concluded that the Union’s prior offending in the broad has little relevance to its derivative liability in this case. In any event, whether I am correct in that or not, the Union will be separately punished for that derivative offending. Mr Bourke acknowledges that Mr Tzimas is to be sentenced as a first offender. He does not dispute anything Mr Tzimas has adduced in evidence as to his having learned better how to control his emotions and the it being unlikely that he would conduct himself in a similar manner in the future.

211    In my view in the specific context of this proceeding Mr Tzimas should not be prevented from asking his employer to indemnify him. He had been called to the worksite late at night at the request of union members who had expressed concerns about their safety. The whole unfortunate set of events as then enfolded might have been addressed differently had the management of John Holland given, as Sgt Quirke suggested would assist ending the stand-off, him and Mr Buckley the documents they wanted to see. Mr Tzimas was subsequently confronted by demands (which the Commissioner does not defend as having been lawful) that he desist from pursing the industrial rights he was exercising in the interests of his members.

212    Mr Tzimas was entitled to stand his ground as he did. His doing so in the events in evidence, did not hinder or prevent either Mr Drury or the police in the exercise of their lawful duties. Moreover, albeit the consequence is speculative, his persistence may have prevented workplace injuries or death befalling member of the Union.

213    While Mr Tzimas spoke to Mr Drury and the police in the course of those events on four occasions in terms that the court accepts, as speech acts, breached s 500 of the FW Act the balance, viewed in the round, having regard to the potential consequences he may have averted by the resolution he demonstrated is very much in his favour. It might even be thought that a failure by the Union to indemnify him in those circumstances would be callous.

214    I reject that, in the exercise of my discretion, the Court should make an order preventing that.

215    For completeness I should indicate that I have rejected Mr Doyle’s submission that the Court should additionally mitigate the penalties it has imposed on Mr Tzimas having regard to the fact that he will, subject to an application to the Fair Work Commission, automatically suffer the loss of his entry rights for a period of time in consequence of being convicted of a contravention of the relevant provisions of the FW Act.

216    In my view that is a separate matter. Mr Tzimas will be entitled to make an application to the Fair Work Commission for his entry rights to be restored and in that regard he will have available, to his benefit or otherwise, my reasons with respect his conduct in these events.

Mr Buckley

217    Mr Buckley admits to one incident of offending. His “acting in an improper manner” while exercising rights in accordance with Part 3-4 of the FW Act is constituted by the words he directed to Sen Sgt West and other VicPol officers at the time he was writing up a further notice of suspected contravention by John Holland in the aftermath of Mr Tzimas having been escorted off the worksite by the police. The language Mr Buckley used as the Commissioner pleads is set out at [95] above.

218    Whether Mr Buckley spoke those words out of cold fury, frustration, or relief of tension after some six hours of his and Mr Tzimas having sought to insist on their industrial rights and having been denied access to the relevant paperwork as would have permitted them to complete that task, hardly matters, the language he directed to the police was grossly unacceptable. I note that Mr Doyle does not submit that Mr Buckley’s remarks can be understood to be confined to criticism of Mr Drury who it would appear was then not present.

219    It is not to the point that after considerable delay and hesitation as to their duty the police may have erred (and I accept, given it is not contended to the contrary, did err) by accepting Mr Drury’s analysis of the position and, in consequence, escorting Mr Tzimas (which led Mr Buckley also to leave) from the worksite.

220    Even accepting Mr Doyle’s submission that workplaces are places where robust language is common Mr Buckley’s abusive comments in the aftermath of those events to the effect that the police were on John Holland’s payroll, had been exhibiting corruption at its finest and had sided with Mr Drury in defending a tyrant went beyond that which can be accepted.

221    But for what follows I would accept Mr Bourke’s submission that Mr Buckley’s contravention of s 500 of the FW Act warrants a penalty, if not at the highest range, at least as would represent condign disapproval. However, the sad position is that as a result of an assault on a worksite Mr Buckley has since suffered significant injuries. He has no prospects for the foreseeable future of serving again as an industrial officer of the union. In light of those circumstances the following exchange took place between the bench and Mr Bourke:

HIS HONOUR: Sorry – I just ask you is there any reason why specific deterrence might be not material in Mr Buckley’s case, given what I take is not contentious, that he has been rendered hors de combat – he has been the subject of an assault and does seem a bit - - -

MR BOURKE: Your Honour, the focus would have to be, in fixing penalty, general deterrence, because specific deterrence - - -

HIS HONOUR: So there would be a different - - -

MR BOURKE: - - - ..... - - -

HIS HONOUR: There would be a different level for Mr Buckley as opposed – I mean, Mr Tzimas has a wider range of conduct alleged against him, in any event. But, even that accepted, Mr Buckley – well, I don’t see – please tell me if I’m wrong, but I see at the moment no case at all for any factor of specific deterrence being applied in his instance.

MR BOURKE: Your Honour, there’s quite a lot of force in that observation, with respect, because it’s unlikely he will return in any way to the industrial arena. So the focus of any penalty would have to be what it says regarding general deterrence, having regard to the seriousness of the conduct.

HIS HONOUR: Yes. And, in that instance, is there any reason why the court might not recognise the reality by perhaps suspending any penalty in his particular case? I mean, requiring a man who has lost his work capacity to pay a fine for past conduct in which he played a relatively modest part, and as a lesser of the participants, might be thought – that might be an act of – which a model litigant would concede is appropriate – not likely ..... to be occasion because he won’t come back into the workplace, but it would be over his head in any event if he did.

MR BOURKE: Your Honour, could I just say that that would be in the range of your discretion if your Honour considered that suspending the penalty would also send a sufficient message in terms of general deterrence.

HIS HONOUR: Yes. Look, in a sense, I’m just trying to disaggregate Mr Buckley because of his particular circumstances. I’m not quite sure how general deterrence really then kicks in for somebody who’s never going to be back in the workplace. I appreciate that, at least theoretically, it applies. But, to the extent that it has – it may be, and I put it no higher than that, that it may be that it is sufficient to recognise that any penalty that ought be imposed having regard to the principles of general deterrence is, nonetheless, sufficient in his particular instance if it’s suspended.

MR BOURKE: Your Honour, with respect, that would be within the range of your discretion.

222    I am grateful to Mr Bourke for acknowledging that it would be within the range of the Court’s discretion that any penalty in respect of Mr Buckley’s offending be wholly suspended.

223    I therefore turn to consider what, if any, pecuniary penalty, should be imposed. Mr Doyle advances nothing in mitigation beyond the fact of his injuries, perhaps because of the difficulties of obtaining instructions from him but I observe that Mr Buckley had for some six hours previously contained himself in trying and inherently stressful circumstances.

224    For the whole of that time Mr Buckley had said nothing offensive directed towards any of the management of John Holland, Mr Drury or the members of VicPol notwithstanding he had been standing his ground (as he was entitled to) with Mr Tzimas in rejecting that he and Mr Tzimas should desist from asserting, as they were entitled to, lawful industrial rights on behalf of their members. On the other hand once he did express himself his language was unrestrained and, in my view, more offensive than anything Mr Tzimas had said.

225    The facts do not reveal when John Holland abandoned moving the beams on the morning of 4 December 2019 but it must have been around the time when Mr Buckley directed his abuse at the police. However I would not discount that his outburst may have involved an element of stress relief in recognition that the dangers he had feared might befall the workforce had been avoided. That would not justify his conduct, but at a human level it would be an understandable reaction.

226    In the specific circumstances of Mr Buckley, having regard to his having no previous convictions for a relevant offence, it being his single offence arising out of the relevant events notwithstanding the stressors he must have been subject to, and the fact that as a result of his later injuries he is unlikely ever to be again able to work in a similar role I am satisfied the residual requirement of general deterrence will be adequately met if the Court’s disapproval of his admitted conduct is manifested by it imposing a pecuniary penalty of (30% of the maximum) $3,780.00 to be wholly suspended on condition that Mr Buckley commit no further offence against the FW Act for two years.

THE UNION’S DERIVATIVE LIABILITY

227    Mr Bourke submits that having regard to the underlying seriousness of Mr Tzimas’ and Mr Buckley’s contravening conduct itself the penalties to be imposed by reason of the Union’s derivative liability should be at the high end of those available.

228    It will be recalled that the maximum penalty available as against the Union, for a single contravention is $63,000.00. Penalties at the high end, it is submitted, are necessary to serve the object of deterrence in this case.

229    The Commissioner has put into evidence an affidavit of Mr Benjamin Vallance sworn on 6 August 2021 which, it is not in contest, establishes that the Union has available to it very significant financial assets.

230    By agreement the Court also received as an exhibit a table of the prior contraventions of the Union. That table is Ex A1.What is evident from that table is that the Union has a disturbing history of prior offending against industrial legislation.

231    However as I recognised in Australian Building and Construction Commissioner v Parker [2021] FCA 704 (Parker) the Union has finally if belatedly begun taking steps to put in place measures to change the cultural or normative conduct of the contravening behaviours of its officers and employees at least in respect of issues concerning industrial safety.

232    I noted in Parker that that change might be motivated by the Union’s recognition that, as with the boy who cried wolf, any misuse of industrial safety as a pretext to secure other ends has the potential to lead to genuine issues of safety when raised by its officials being dismissed notwithstanding there really is a wolf. In that regard I noted the prescience of the observation of Jessup J in Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168 at [133]:

133     …Were it to become commonplace, conduct of this kind could only tend to undermine the legitimacy of such genuine health and safety concerns as might be expressed by the CFMEU from time to time, to the long-term detriment of workers in the industry…

233    The Union’s determination to change the cultural and normative conduct of its officers and employees at least in respect of issues concerning industrial safety has continued and is similarly manifested in this proceeding. I have referred in my discussion of Mr Tzimas’ personal circumstances as relevant to mitigation to the counselling he has been required to undertake with Mr Brian Lacy AO. As I described in Parker the Union has engaged Mr Lacy to roll out a programme of industrial training for its officers and shop-stewards. In evidence in this case is the affidavit of Mr Lacy of 27 August 2021 in which he deposes to the role the Union has asked him to undertake and in which he describes the specific training he provided to Mr Tzimas.

234    Mr Bourke accepts that I am entitled to take those factors into account in imposing penalty but nonetheless submits that the Union’s shocking history still warrants a high penalty being imposed.

235    The position I regard myself as proper (and bound) to adopt is as was stated by Katzmann J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the WGC Cranes Case) [2021] FCA 622:

120     The primary, if not the only, purpose of a civil penalty is to promote the public interest in compliance with the law. This is achieved by imposing penalties that are sufficiently high to deter the wrongdoer from engaging in similar conduct in the future (specific deterrence) and to deter others who might be tempted to contravene (general deterrence). The penalty for each contravention or course of conduct is to be no more and no less than is necessary for that purpose. See, for example, Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (The Agreed Penalties Case) at [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). At the same time, however, the penalty or penalties must be proportionate to the contravening conduct: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 at [22] (Allsop CJ, White and O’Callaghan JJ); Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 384 ALR 75; 299 IR 404 (Allsop CJ, Besanko, White, Wigney and Bromwich JJ). In Pattinson at [180] Allsop CJ, White and Wigney JJ observed that:

[T]he notion of proportionality of the penal response is central to the content of the statutory power to impose the penalty. That proportional response is not blind to wilful recidivism, to asserted impunity from obedience to the law, or to any other aspect of intentional disobedience to the will of Parliament. Such matters form a principled part of the assessment of the seriousness of the contravention and thus the evaluation of the appropriate penalty … What is not permitted in the name of deterrence is to untether the penal response from the nature and character of the instant contravention such that the penalty imposed can be seen to be undifferentiated between the grades of conduct assessed and characterised on a principled basis.

236    Contrary to Mr Bourke’s submissions I am unpersuaded that by reason of the underlying seriousness of Mr Tzimas’ and Mr Buckley’s contravening conduct itself the penalties to be imposed by reason of the Union’s derivative liability should be at the high end of that which is available.

237    I accept it is to oversimplify but the basic principal of derivative liability is that the derivative offender is assumed to have the same knowledge and to have undertaken the same conduct as did the principal offender.

238    For the reasons I have stated above the underlying seriousness of Mr Tzimas’ and Mr Buckley’s contravening conduct does not come close to the most serious and grave of contravening conduct prohibited by s 500 of the FW Act. Further this is not a boilerplate case where the large body of judicial commentary about the Union’s prior offending can be applied without recognising that the (regrettably many) cases in which those observations may be found offer little or no guidance in the specific facts of this case. I have carefully addressed myself to all of the authorities the Commissioner has cited but having done so I am satisfied that Mr Doyle is correct to submit that not one of them is directly relevant.

239    However, because the derivative offender and the principle offender are not the same person very different issues of mitigation or aggravation may be material. In the case of the Union its history has often properly been held to be an aggravating circumstance.

240    I do not dismiss that the long earlier history of the Union having tolerated unacceptable industrial behaviour, even in respect of safety issues (as an example see The Laverton North and Cheltenham Premises Case (No 2)) may have given Mr Tzimas and Mr Buckley to understand they had licence to use the words they did, but the Union has since seen fit to put in place the training Mr Lacy is facilitating in order to avoid or minimise a repeat of such actions as were taken, contrary to industrial law, by them. 

241    The Union’s commitment to the programme Mr Lacy has been instructed to provide to its officers and shop stewards, in my opinion, is significantly mitigating. It would be naive to suggest that any programme of training will be proof against individual officers or shop stewards overstepping the mark now or in the future: nothing could achieve that. However what judges of this Court have repeatedly expressed concern about has been that as an institution the Union had taken no action, notwithstanding its many contraventions, to change the cultural and normative drivers of the contravening behaviours of its officers, shop stewards and employees. At least in respect of safety issues (as is relevant to this proceeding) I am satisfied that the Union has taken that step. That it has done so addresses for the purpose of specific deterrence mitigation to a like degree as the principal offender’s personal circumstances in Mr Tzimas’ instance. However general deterrence remains. It still has important work to do in keeping the Union to the task it has committed itself to.

242    In my view the relevant principles, applied as Katzmann J has expressed them in the passage I have cited at [235], will be adequately served by the Court imposing penalties on the Union for its derivative offending in the same proportion to the maximum available penalties as those imposed on the principle offenders.

243    In respect of the offences in which Mr Tzimas is (or is alleged to be) the primary offender I will convict the Union in respect of its derivative liability for the first contravention without imposing a financial penalty. I will impose a penalty of (25% of the maximum) $15,750.00 for the second contravention. I will dismiss the third contravention. I will impose a penalty of (20% of the maximum) $12,600.00 for the fourth contravention. I will impose a penalty of (25% of the maximum) $15,750.00 in respect of the fifth contravention.

244    In respect of the offence in which Mr Buckley is the primary offender I will impose a penalty of (30% of the maximum) $18,900.00 The circumstances applying to Mr Buckley which led the Court to determine that that penalty might properly be wholly suspended in his instance do not apply to the Union.

245    I am satisfied that neither the course of conduct principle nor the totality principle requires the aggregated amount of penalties for those contraventions which sums to $63,000.00 (100% of that which is the maximum penalty for a single offence) to be further reduced.

DECLARATIONS

246    Given the Court’s conclusions with respect to the relevant offending of the respondent parties and with respect to the penalties appropriate to be imposed on them expressed in these reasons I am satisfied that declarations in the terms proposed by the Commissioner are not open to be made. Moreover I am not satisfied that more nuanced declarations should be made. In that regard I note and endorse the recent observations made by Lee J in Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing) [2021] FCA 1384 at [2615]:

…[regulators] should be mindful of the admonition of Gray J as to the “fetish”, as his Honour described it, of certain regulators seeking, and the Court granting, declaratory relief simply because the Court finds that a contravention has occurred: Australian Competition and Consumer Commission v Francis [2004] FCA 487; (2004) 142 FCR 1 (at 36 [110]). As a general proposition, there is little point in declaratory relief if it has no impact on the penalty. As I said in Australian Securities and Investments Commission v AMP Financial Planning Pty Ltd (No 2) [2020] FCA 69; (2020) 377 ALR 55 (at 94 [151]), the “reality is that both the Court’s disapproval of contravening conduct and clarification of the law is much more likely to emerge from a perusal of reasons than the bare terms of essentially repetitive declarations”.

Those remarks are highly apposite: the reasons for the penalties which have been imposed in this case have required the Court taking into consideration complex circumstances which, save by pointless prolixity and repetition, would not be reflected the bare terms of any declarations.

247    In the circumstances applying I am not satisfied that there is any utility in declarations differently expressed. The basis for the Court imposing the penalties it has arrived at have been identified in its reasons.

Associate:

Dated:    16 November 2021