Federal Court of Australia
Australian Building and Construction Commissioner v Holl (The Wheeler Cranes Case) [2021] FCA 1480
ORDERS
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant | ||
AND: | First Respondent JUSTIN HOBSON Second Respondent MIKEL DACKO (and another named in the Schedule) Third Respondent | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
First respondent
1. Pursuant to s 545 of the Fair Work Act 2009 (Cth) (FW Act), the first respondent contravened s 355(b) of the FW Act on 18 October 2018 at the Kooragang Coal Terminal, Kooragang Island, New South Wales (the KCT) by taking action against Port Waratah Coal Services (PWCS) with an intent to coerce PWCS to not engage Wheeler Cranes & Services Pty Ltd (Wheeler Cranes) as an independent contractor.
2. Pursuant to s 81 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act), the first respondent contravened s 52(b) of the BCIIP Act on 19 October 2018 at the Newcastle TAFE Site at 590 Hunter Street, Newcastle, New South Wales (the Newcastle TAFE Site) by taking action against 3 Cross Pty Ltd (3 Cross) with an intent to coerce 3 Cross to not engage Wheeler Cranes as a building contractor.
3. Pursuant to s 545 of the FW Act, the first respondent contravened s 500 of the FW Act on 19 October 2018 at the San Clemente High School, Mayfield, Newcastle, New South Wales (the San Clemente Site) while exercising or seeking to exercise rights in accordance with Pt 3-4 of the FW Act by intentionally hindering or obstructing Wheeler Cranes and North Constructions Pty Ltd (North Constructions) from performing work by the use of a Wheeler Cranes’ crane.
4. Pursuant to s 545 of the FW Act, the first respondent contravened s 355(b) of the FW Act on 22 October 2018 at the KCT by taking action against PWCS with an intent to coerce PWCS to not engage Wheeler Cranes as an independent contractor.
5. Pursuant to s 545 of the FW Act, the first respondent contravened s 500 of the FW Act on 22 October 2018 at the KCT while exercising or seeking to exercise rights in accordance with Pt 3-4 of the FW Act by intentionally hindering or obstructing Wheeler Cranes and PWCS from operating and performing work by the use of a Wheeler Cranes’ crane.
Second respondent
6. Pursuant to ss 81 and 92(1)(d) of the BCIIP Act, the second respondent contravened s 52(b) of the BCIIP Act on 19 October 2018 at the Newcastle TAFE Site by being directly, indirectly, or knowingly concerned in the first respondent’s contravention of s 52(b) by taking action against 3 Cross with an intention to coerce 3 Cross to not engage Wheeler Cranes as a building contractor.
7. Pursuant to s 545 of the FW Act, the second respondent aided and abetted or was knowingly concerned in or party to the contravention of s 500 of the FW Act by the first respondent on 19 October 2018 at the San Clemente Site and therefore, by reason of the operation of s 550(1), contravened s 500 of the FW Act.
8. Pursuant to s 545 of the FW Act, the second respondent aided and abetted or was knowingly concerned in or party to the contraventions of s 500 of the FW Act by the first respondent on 22 October 2018 at the KCT and therefore, by reason of the operation of s 550(1), contravened s 500 of the FW Act.
Fourth respondent
9. Pursuant to s 545 of the FW Act, in respect of declarations 1, 3, 4, 5, 7 and 8 above, the conduct and state of mind of each of the first and second respondents was by reason of ss 363 and 793 of the FW Act the conduct and state of mind of the fourth respondent.
10. Pursuant to s 81 of the BCIIP Act, in respect of declarations 2 and 6 above, the conduct and state of mind of each of the first and second respondents was by reason of ss 94 and 95 of the BCIIP Act, the conduct and state of mind of the fourth respondent.
11. The fourth respondent contravened:
(a) Section 355(b) of the FW Act on 18 October 2018 at the KCT, by the conduct of the first respondent and by operation of subsections 363(1)(b) and 363(3) and 793(1)(a) and 793(3) of the FW Act;
(b) Section 52(b) of the BCIIP Act on 19 October 2018 at the Newcastle TAFE Site, by the conduct of the first respondent and by operation of subsections 94(1)(a), 94(2), 95(1)(b) and 95(3) of the BCIIP Act;
(c) Section 355(b) of the FW Act on 22 October 2018 at the KCT, by the conduct of the first respondent and by operation of subsections 363(1)(b) and 363(3) and 793(1)(a) and 793(3) of the FW Act;
(d) Section 52(b) of the BCIIP Act on 19 October 2018 at the Newcastle TAFE Site, by the conduct of the second respondent by operation of subsections 92(1)(b) and (d), in aiding, abetting and being directly or indirectly, knowingly concerned in the contraventions of the first respondent of s 52(b) and by operation of subsections 94(1)(a), 94(2), 95(1)(b) and 95(3) of the BCIIP Act;
(e) Section 500 of the FW Act on 19 October 2018 at the San Clemente Site by the conduct of the first and second respondents and by reason of subsection 550(2) of the FW Act being directly or indirectly knowing concerned in, or party to, a contravention of s 500 of the FW Act by intentionally hindering or obstructing Wheeler Cranes and North Constructions from performing work by use of a Wheeler Cranes’ crane while exercising or seeking to exercise rights in accordance with Pt 3-4 of the FW Act; and
(f) Section 500 of the FW Act on 22 October 2018 at the KCT by the conduct of the first and second respondents and by reason of subsection 550(2) of the FW Act being directly or indirectly knowing concerned in, or party to, a contravention of s 500 of the FW Act by intentionally hindering or obstructing Wheeler Cranes and PWCS from performing work by use of a Wheeler Cranes’ crane while exercising or seeking to exercise rights in accordance with Pt 3-4 of the FW Act.
THE COURT ORDERS THAT:
First respondent
1. Pursuant to s 546(1) of the FW Act and 81(1) of the BCIIP Act, the first respondent is to pay the following pecuniary penalties:
(a) Section 355(b) FW Act contravention (KCT – 18 October 2018) – $8,800;
(b) Section 52(b) BCIIP Act contravention (Newcastle TAFE Site – 19 October 2018) – $29,000;
(c) Section 500 FW Act contravention (San Clemente Site – 19 October 2018) – $7, 500;
(d) Section 355(b) FW Act contravention (KCT – 22 October 2018) – $8,800; and
(e) Section 500 FW Act contravention (KCT – 22 October 2018) – $7,500.
Second respondent
2. Pursuant to s 546(1) of the FW Act and 81(1) of the BCIIP Act, the second respondent is to pay the following pecuniary penalties:
(a) Section 52(b) BCIIP Act contravention (Newcastle TAFE Site – 19 October 2018) – $21,000;
(b) Section 500 FW Act contravention (San Clemente Site - 19 October 2018) – $6,000; and
(c) Section 500 FW Act contravention (KCT – 22 October 2018) – $6,000.
Fourth respondent
3. Pursuant to s 546(1) of the FW Act and 81(1) of the BCIIP Act, the fourth respondent is to pay the following pecuniary penalties:
(a) Section 355(b) FW Act contravention (KCT – 18 October 2018) – $50,000;
(b) Section 52(b) BCIIP Act contravention (Newcastle TAFE Site – 19 October 2018) – $260,000;
(c) Section 500 FW Act contravention (San Clemente Site – 19 October 2018) – $50,000;
(d) Section 355(b) FW Act contravention (KCT – 22 October 2018) – $50,000; and
(e) Section 500 FW Act contravention (KCT – 22 October 2018) – $50,000.
4. Pursuant to s 546(3) of the FW Act and s 81(5) of the BCIIP Act, the penalties imposed on the first, second and fourth respondents for each of the contraventions are to be paid to the Commonwealth within 28 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Abraham j:
1 The applicant, the Australian Building and Construction Commissioner (ABCC), seeks declarations and the imposition of civil penalties in respect of contraventions of the Fair Work Act 2009 (Cth) (FW Act) and the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) by the first respondent, Brendon Holl, the second respondent, Justin Hobson, and the fourth respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), in respect of conduct occurring at building sites in the Newcastle region in the period between 18 and 22 October 2018.
2 The ABCC is a Commonwealth regulator of the building and construction industry appointed under the BCIIP Act. The ABCC is responsible for, amongst other things, monitoring and promoting appropriate standards of conduct and ensuring building industry participants comply with designated building laws (which includes the BCIIP Act and the FW Act).
3 These proceedings were commenced on 23 December 2019 and with the liability aspect of the hearing listed to commence on 5 October 2021 (the original hearing date of April 2021 having become unavailable). On 21 September 2021, shortly prior to when the proceedings were listed to commence, the Court was informed that an in principle agreement had been reached between the parties as to liability whereby the CFMMEU, Mr Holl and Mr Hobson would admit liability to certain contraventions, and the ABCC would not press other contraventions and discontinue its case against the third respondent, Mikel Dacko. As a consequence, an amended originating application, an amended statement of claim, amended defences and a statement of agreed facts (SOAF) have been filed by the parties, together with written submissions.
4 As a result of the admissions made, the ABCC seeks that the Court make declarations under s 545 of the FW Act and s 81 of the BCIIP Act and impose penalties under ss 546(1) and 546(3) of the FW Act and ss 81(1) and 81(5) of the BCIIP in respect of the following contraventions.
5 In respect to Mr Holl:
(1) a contravention of s 355(b) of the FW Act on 18 October 2018 at the Kooragang Coal Terminal (KCT) by reason of his conduct in taking action against Port Waratah Coal Services (PWCS) by participating in a blockade of the KCT site with other protestors, then entering the site but then refusing to remove the blockade and leave the site until Wheeler Cranes & Services Pty Ltd (Wheeler Cranes) had removed its crane from the site, with an intent to coerce PWCS not to engage Wheeler Cranes as an independent contractor;
(2) a contravention of s 52(b) of the BCIIP Act on 19 October 2018 at the Newcastle TAFE Site at 590 Hunter Street, Newcastle, New South Wales (the Newcastle TAFE Site) by reason of his conduct against 3 Cross Pty Ltd (3 Cross) by entering the site without a proper legal basis and refusing to leave the site until the Wheeler Cranes’ crane was removed, with an intent to coerce 3 Cross to not engage Wheeler Cranes as a building contractor;
(3) a contravention of s 500 of the FW Act on 19 October 2018 at the San Clemente High School, Mayfield, Newcastle, New South Wales (San Clemente Site) by reason of his conduct in demanding that the crane owned and operated by Wheeler Cranes be removed from the site even though no genuine safety issues existed to require its removal, despite the rectification of safety issues and the reasonable proposals to rectify any outstanding issues, and then refusing to leave the site until the crane was removed, which prevented the crane operating and carrying out building work scheduled to be performed that day;
(4) a contravention of s 355(b) of the FW Act on 22 October 2018 at KCT by reason of his conduct in hindering or preventing Wheeler Cranes as a contractor and its employees entering the KCT to perform work scheduled for 22 October 2018 for, or to supply services to, PWCS, which PWCS was contracted to provide to others; and
(5) a contravention of s 500 of the FW Act on 22 October 2018 at KCT by reason of his conduct in intentionally hindering or obstructing persons from Wheeler Cranes and PWCS by standing in front of the Wheeler Cranes’ crane and truck to prevent it being moved and by preventing Wheeler Cranes from moving the crane and truck once it had entered the KCT without proper justification.
6 In respect to Mr Hobson:
(1) by reason of s 92(1)(d) of the BCIIP Act, a contravention of s 52(b) of the BCIIP Act on 19 October 2018 at the Newcastle TAFE Site by aiding, abetting, and/or being directly or indirectly knowingly concerned in Mr Holl’s contravention by being present when, aligning himself with and not disassociating himself from the conduct of Mr Holl;
(2) by reason of s 550(2) of the FW Act, a contravention of s 500 of the FW Act on 19 October 2018 at the San Clemente Site by aiding, abetting, and/or being knowingly concerned in, or party to, Mr Holl’s contravention by being present when, aligning himself with and not disassociating himself from the conduct of Mr Holl; and
(3) by reason of s 550(2) of the FW Act, a contravention of s 500 of the FW Act on 22 October 2018 at KCT by being knowingly concerned in, or party to, Mr Holl’s contravention by being present when, aligning himself with and not disassociating himself from the conduct of Mr Holl.
7 In respect to the CFMMEU:
(1) by reason of ss 363 and 793 of the FW Act, a contravention of s 355(b) of the FW Act on 18 October 2018 at KCT because of the conduct and state of mind of Mr Holl;
(2) by reason of ss 94 and 95 of the BCIIP Act, a contravention of s 52(b) of the BCIIP Act on 19 October 2018 at the Newcastle TAFE Site because of the conduct and state of mind of Mr Holl;
(3) by reason of ss 94 and 95 of the BCIIP Act, a contravention of s 52(b) of the BCIIP Act on 19 October 2018 at the Newcastle TAFE Site because of the conduct and state of mind of Mr Hobson;
(4) by reason of ss s 550(2) of the FW Act, a contravention of s 500 of the FW Act on 19 October 2018 at the San Clemente Site because of the conduct and state of mind of Mr Holl;
(5) by reason of ss 363 and 793 of the FW Act, a contravention of s 355(b) of the FW Act on 22 October 2018 at KCT because of the conduct and state of mind of Mr Holl; and
(6) by reason of ss s 550(2) of the FW Act, a contravention of s 500 of the FW Act on 22 October 2018 at KCT because of the conduct and state of mind of Mr Holl.
8 The matter falls now for the penalty to be imposed. The ABCC is entitled to apply for the relief sought in relation to contraventions of the FW Act pursuant to s 66(3).
9 For the reasons below, I make the declarations in the terms of the orders sought.
10 In respect to the pecuniary penalties, the amounts for each contravention are detailed below at [187]-[188] and [195]. Suffice to say at this stage, the total order made in respect to Mr Holl is $61,600, in respect to Mr Hobson is $33,000 and the CFMMEU is $460,000.
Relevant statutory provisions
11 The relevant provisions the subject of the contraventions are as follows.
12 In respect to the FW Act:
355 Coercion—allocation of duties etc. to particular person
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person; or
(b) engage, or not engage, a particular independent contractor; or
(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
Note: This section is a civil remedy provision (see Part 4 1).
500 Permit holder must not hinder or obstruct
A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
Note 1: This section is a civil remedy provision (see Part 4 1).
Note 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.
Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).
13 In respect to the BCIIP Act:
52 Coercion relating to allocation of duties etc. to particular person
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person as a building employee; or
(b) engage, or not engage, a particular independent contractor as a building contractor; or
(c) allocate, or not allocate, particular duties or responsibilities to a building employee or building contractor; or
(d) designate a building employee or building contractor as having, or not having, particular duties or responsibilities.
Note 1: See also Division 2 (reason for action and coercion).
Note 2: Grade A civil penalty.
Factual Background
14 As noted above, the matter proceeded on the basis of a SOAF.
15 Mr Holl and Mr Hobson are employees and members of the CFMMEU. They are both officers of the CFMMEU within the meaning of s 12 of the FW Act. The CFMMEU is an organisation of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth). It is accepted by the parties that the conduct engaged in by Mr Holl and Mr Hobson, described below, was engaged in by them on behalf of the CFMMEU, as officers of the CFMMEU, and within the scope of their actual or apparent authority.
16 Wheeler Cranes is a supplier of mobile crane and mobile crane hire services to building contractors in New South Wales.
17 In May 2018, Albert Wheeler, principal and Director of Wheeler Cranes, decided to engage in discussions with Wheeler Cranes’ employees as to a possible enterprise bargaining agreement (EBA) between them and Wheeler Cranes. In May and June 2018, Mr Wheeler, Glenn Wilbow (Manager at Wheeler Cranes) and Stephen Smallman (Safety Manager at Wheeler Cranes) attended meetings with Wheeler Cranes’ employees to discuss the possible EBA. Mr Holl and other CFMMEU officials were permitted to attend these meetings. Mr Holl was the nominated bargaining representative for the CFMMEU, but Wheeler Cranes’ employees nominated five of their own number as their bargaining representatives.
18 In July 2018, the CFMMEU provided Wheeler Cranes with a draft proposed EBA. Further meetings occurred on 17, 18 and 30 July 2018, 13 August 2018 and 3 September 2018 between Wheeler Cranes, its employee bargaining representatives and Mr Holl, but the parties could not reach an agreement on the proposed EBA.
19 After the unsuccessful discussions to enter into a new EBA between Wheeler Cranes and its employees, the CFMMEU commenced an industrial campaign against Wheeler Cranes comprising a number of incidents involving CFMMEU officials at sites where Wheeler Cranes supplied mobile cranes. This conduct gave rise to the alleged contraventions of the FW Act and the BCIIP Act which are the subject of these proceedings.
KCT –18 October 2018
20 PWCS owned, operated and managed the KCT on Kooragang Island at Newcastle, New South Wales, where it carried on the business of stockpiling, blending and loading coal. In October 2018, Boom Logistics Ltd (Boom Logistics) was unable to provide mobile crane services to PWCS due to its employees engaging in protected industrial action. As a result, PWCS engaged Wheeler Cranes and Borger Crane Hire & Rigging Services Pty Ltd (Borgers) pursuant to oral agreements to provide mobile crane services to the KCT, and work was scheduled to be carried out between 18 and 23 October 2018.
21 At all relevant times PWCS employed the following persons at the KCT: Mark Carlin as Operations Superintendent; Ross Van Dyke as Maintenance Superintendent; Warren Peterson as an Operations Supervisor; Brett Miller as an Operations Supervisor; Shaun Sears as General Manager of Operations; and Peter Astley as Mechanical Supervisor.
22 On 18 October 2018, at approximately 7:00 am, groups of persons, some dressed in CFMMEU branded clothing and carrying CFMMEU banners and flags (the protesters), congregated outside Gates 3 and 4, the Wharf Gate and the Main Gate of the KCT. Each area where the protesters congregated was a public place.
23 At approximately 7:35 am the Wheeler Cranes’ mobile crane, driven by Richard Roach, an employee of Wheeler Cranes, arrived at the KCT for the purpose of carrying out and assisting with scheduled maintenance work. Mr Carlin directed Mr Roach to pass through a gate owned by the Port of Newcastle and then through an internal gate to the KCT known as the Bechtel Gate, and escorted the Wheeler Cranes’ crane onto the KCT and to its maintenance compound. Mr Roach and the Wheeler Cranes’ dogman, Joshua Redman, set up the crane and commenced work.
24 The protesters standing outside the Main Gate saw the Wheeler Cranes’ crane enter the KCT and moved to the Bechtel Gate and commenced chanting, waving CFMMEU flags and shaking their fists at the KCT. By 8:40 am, the protesters had positioned themselves across the front of all gates to the KCT and were blocking access and egress to and from the KCT to contractors and employees of PWCS seeking to enter the KCT.
25 At about that time, Mr Carlin and Mr Peterson drove to the Wharf Gate and alighted from their car. Mr Carlin asked one of the protesters to identify their leader, and he pointed to Mr Holl, who was present. Mr Holl introduced himself to Mr Carlin and Mr Peterson by name and told them he was from the CFMMEU.
26 Mr Carlin asked Mr Holl if he and the protesters intended to continue to blockade the KCT as it was affecting PWCS’ operations. Mr Holl told Mr Carlin and Mr Peterson that he and the protesters were blockading the KCT because a Wheeler Cranes’ crane had been given access and they wanted it removed from the site and for PWCS to only use Borgers’ cranes. He also told them that he and the protesters had no objection to a Borgers’ crane accessing the site.
27 Mr Carlin told Mr Holl that he was engaging in unlawful conduct that should cease and that the protesters should allow personnel seeking to access the KCT to access the site so that PWCS’ operations could be maintained. Mr Holl told Mr Carlin and Mr Peterson he and the protesters would not be allowing anyone access to the KCT until the Wheeler Cranes’ crane was removed from the KCT.
28 Mr Carlin told Mr Holl he would call the Police. Mr Holl said they would wait until the Police arrived and then stand aside and allow access to the KCT. Mr Holl told Mr Carlin that he and the protesters objected to Wheeler Cranes as it was “being back-doored by Boom”, a reference to Boom Logistics. Mr Carlin told Mr Holl that PWCS had independently engaged Wheeler Cranes and Borgers to carry out work for PWCS, which Mr Holl said he did not accept.
29 Mr Peterson called the Police and asked them to attend. While waiting for the Police to arrive, Mr Carlin remained at the Wharf Gate, and by reason of the blockade of the Gate, and as he understood it, all of the KCT gates, by the protesters, he directed all vehicles arriving away from the KCT and advised their drivers to seek other work for the day.
30 At approximately 9:20 am, five police officers arrived at the KCT Wharf Gate and spoke to Mr Holl. After the Police spoke to Mr Holl, he directed the protesters to move to the sides of the Wharf Gate so as to cease blocking access and egress, which they did. The police officers also attended the other KCT gates.
31 At about 12:25 pm, Mr Holl, Mr Hobson and another CFMMEU official approached the Main Gate, spoke to Mr Peterson and requested access to inspect the Wheeler Cranes’ crane on site.
32 At approximately 12:50 pm, Mr Carlin met Mr Holl, Mr Hobson and another CFMMEU official at the Main Gate carpark.
33 Mr Holl introduced Mr Hobson and another CFMMEU official as representatives of the CFMMEU (the CFMMEU officials). Mr Holl said to Mr Carlin and Mr Peterson that they had right of access under the Work Health and Safety Act 2011 (NSW) (WHS Act) “due to operators not following manufacturer requirements”. When Mr Carlin asked Mr Holl what it was that the operators were not doing, Mr Holl told Mr Carlin he did not have to tell him anything until after the inspection of the Wheeler Cranes’ crane. Mr Holl and Mr Hobson showed Mr Carlin their right of entry permits issued under the WHS Act and FW Act.
34 After Mr Carlin and Mr Peterson escorted Mr Holl, Mr Hobson and another CFMMEU official to the Wheeler Cranes’ crane, they inspected the crane.
35 After the inspection, Mr Hobson said that the crane did not have an anemometer and the locking pins were not installed in the outriggers. One of the CFMMEU officials then inspected the crane jib and confirmed there was no anemometer. Mr Holl also said that the crane slings were out of date. He had a discussion with Mr Astley concerning job safety and sling inspection requirements and disagreed as to whether the crane was compliant. Mr Holl told Mr Carlin, Mr Peterson and Mr Astley that the crane had to be removed from the KCT altogether.
36 At this point Mr Carlin determined that the crane should cease operation but remain on site. Mr Holl demanded that the crane be removed from site.
37 Between 1:30 pm and 2:15 pm, Mr Wheeler and Mr Wilbow arrived at the location of the Wheeler Cranes’ crane. Mr Holl repeated the safety issues to them, and Mr Wilbow and Mr Wheeler disagreed as to the correctness of the safety issues and whether they required the crane to cease operation.
38 Mr Carlin then asked Mr Holl to provide a notice under s 119 of the WHS Act. I note that s 119 requires, inter alia, the WHS entry permit holder to give notice of the entry and the suspected contravention in accordance with the regulations to the relevant person conducting a business or undertaking (PCBU) and the person with management or control of the workplace as soon as reasonably practicable after entering a workplace. Mr Holl refused to provide a notice until the crane was removed from the KCT.
39 Mr Holl then told Mr Carlin, Mr Peterson, Mr Wilbow and Mr Wheeler that he, Mr Hobson and another CFMMEU official would not leave the KCT until the Wheeler Cranes’ crane was removed from the KCT.
40 Mr Wheeler and Mr Wilbow then decided to pack up and remove the crane from KCT, which they directed to happen, and at about 2:30 pm the crane left the KCT via Gate 5. As a consequence, Wheeler Cranes could not perform work that day and lost $1,550.00 in revenue.
41 Mr Peterson and Mr Carlin escorted Mr Holl, Mr Hobson and another CFMMEU official back to the Main Gate. At the Main Gate, Mr Holl prepared and provided a s 119 notice to Mr Carlin. The notice nominated Mr Holl, Mr Hobson and another CFMMEU official as permit holders and was signed by all three of them. The CFMMEU officials then left the KCT at about 3:00 pm.
42 By his conduct, Mr Holl admits that he took action against PWCS with the intent to coerce PWCS not to engage Wheeler Cranes in contravention of s 355(b) of the FW Act.
43 The CFMMEU has admitted that it contravened s 355(b) of the FW Act by reason of Mr Holl’s conduct and state of mind.
Newcastle TAFE Site – 19 October 2018
44 In October 2018, 3 Cross was the principal contractor in occupation of a construction project at the Newcastle TAFE Site. On 19 October 2018, Wheeler Cranes had been engaged by 3 Cross to carry out ‘building work’ within the meaning of s 6 of the BCIIP Act, being the removal and installation of stones from and onto the façade of the building at the Newcastle TAFE Site.
45 At about 9:30 am on 19 October 2018, a Wheeler Cranes’ mobile crane, driven by Chris Hazard, an employee of Wheeler Cranes, arrived at the Newcastle TAFE Site. The crane was set up by Mr Hazard and the dogman, Steven Shipton, and commenced work removing and installing stones on the facade of the building. The Newcastle TAFE continued its ordinary business during the work.
46 At about 10:00 am, a group of about 30 men wearing CFMMEU branded clothing, and carrying a loudspeaker and CFMMEU banners and flags gathered in Hunter Street opposite the Newcastle TAFE Site and commenced chanting CFMMEU slogans, inter alia, “Union Power, Union Power, CFMEU, here for the blue, fight one, fight all!”, including over the loudspeaker.
47 At about 10:30 am, Mr Holl and/or Mr Hobson approached Mr Shipton and asked to speak to the site foreman, Joseph Farah, a Project Manager employed by 3 Cross. Mr Shipton advised Mr Farah that CFMMEU representatives wanted to speak to him. Mr Farah left the roof of the building where he was supervising the façade works and met Mr Holl and Mr Hobson in Hunter Street where the Wheeler Cranes’ crane was situated.
48 While Mr Holl and Mr Hobson were waiting for Mr Farah, Mr Holl shouted at Mr Hazard in an aggressive manner “This is not your job!” and “This is a Boom Logistics site!”
49 Mr Farah arrived and had a conversation with Mr Holl and Mr Hobson on Hunter Street. Mr Holl and Mr Hobson did not identify themselves by name. Mr Holl told Mr Farah that the Wheeler Cranes’ crane did not have a wind-vane and that he and Mr Hobson were not allowing the crane to operate. Mr Holl told Mr Farah that they would only leave the site once the crane was removed from the site.
50 As a consequence of Mr Holl and Mr Hobson’s conduct, their conversation with Mr Farah and continuing presence at the site and of the protesting CFMMEU group in Hunter Street, at about 11:00 am, Mr Farah instructed Mr Hazard and Mr Shipton to pack up the crane and remove it from the Newcastle TAFE Site, which they did. At the time the crane left the site at about 11:50 am, the CFMMEU group in Hunter Street cheered loudly.
51 At the time the Wheeler Cranes’ crane ceased work, it had moved only one stone from the façade. The stoppage of work delayed the works to the façade by a week.
52 By their conduct, it is admitted that Mr Holl took action against 3 Cross with the intent to coerce PWCS not to engage Wheeler Cranes in contravention of s 52(b) of the BCIIP Act. It is also admitted that Mr Hobson aided, abetted, and was directly or indirectly knowingly concerned in Mr Holl’s contravention of s 52(b) of the BCIIP Act.
53 The CFMMEU has admitted that it engaged in two contraventions of s 52(b) of the BCIIP Act, by reason of Mr Holl’s conduct and state of mind and by reason of Mr Hobson’s conduct and state of mind.
San Clemente Site – 19 October 2018
54 In 2018, North Construction and Building Pty Ltd (North Construction) was the principal contractor in occupation of a construction project at Crebert Street, Mayfield for the construction of classrooms and a sports hall. On 19 October 2018, Wheeler Cranes had been engaged by North Construction to carry out ‘building work’ within the meaning of s 6 of the BCIIP Act, being the building and construction of a new sports hall, four general meeting classrooms and recruitment of existing structures.
55 At about 11:30 am, a group of about 30 men, some wearing CFMMEU branded clothing and carrying CFMMEU banners and flags and a loudspeaker, assembled opposite the San Clemente Site on the corner of Crebert and Hinkler Streets, Mayfield, chanting slogans, blocking private driveways and interrupting vehicle traffic.
56 At about 11:50 am, Mr Wilbow instructed Mr Hazard to drive Mr Shipton to the San Clemente Site so that Mr Shipton could operate another Wheeler Cranes’ mobile crane already situated on that site for the purpose of carrying out building work, namely lifting structural steel onto the buildings for construction. Mr Shipton arrived at the San Clemente Site at 12:10 pm.
57 In the meantime, at about 11:45 am, Mr Holl arrived at the San Clemente Site in a red utility which he parked partly across the site vehicle access blocking the entry or egress of vehicles into and out of the site. Mr Hobson arrived in a separate vehicle. At this time, both Mr Holl and Mr Hobson reasonably suspected that one or more contraventions of the WHS Act had occurred or were occurring. Mr Holl and Mr Hobson, wearing CFMMEU branded vests, entered the San Clemente Site without any notice or warning to North Construction and without notifying any North Construction personnel of their presence, and walked to where the Wheeler Cranes’ crane was operating just inside the gate.
58 Upon hearing of their entry onto the site, Mr Freeman (Site Forman at the San Clemente Site) and Mitchell Earl (Leading Hand at the San Clemente Site) walked from the site office to the Wheeler Cranes’ crane to speak to Mr Holl and Mr Hobson. The following events then occurred:
(1) Mr Freeman requested that Mr Holl and Mr Hobson go to the site office to sign the site visitors register and undergo a site induction.
(2) Mr Holl said to Mr Freeman “We don’t have to do shit, we’ve told you this before, we don’t sign shit. We’ve been inducted, our permit is our induction”, and “We’ve already done your site induction last time we were here”.
(3) Mr Freeman said to Mr Holl and Mr Hobson “No you haven’t you just sat in the lunchroom and refused to do it until you left the site”.
(4) Mr Holl said to Mr Freeman “No, we’ve already done it, we’re not leaving the site”.
(5) Mr Freeman said to Mr Holl and Mr Hobson “Come and speak in the office, so we’re in a safe area and not in the middle of the construction site”.
(6) Mr Holl said to Mr Freeman “No we’re not moving from the crane”.
(7) Mr Freeman said to Mr Holl and Mr Hobson “You need to comply with any reasonable request by the PCBU and you need to follow our policies and procedures. You need to report to the site office, sign in and do a visitor induction. We know nothing about you, I don’t know your medical history. Who do I call if something happens on site?”.
(8) Mr Holl said to Mr Freeman “Stop playing games, you’re playing games”.
(9) Mr Freeman again asked Mr Holl and Mr Hobson to attend the site office, which they refused to do.
(10) Mr Freeman and Mr Earl asked to see their entry permits, and Mr Holl showed Mr Freeman his entry permit and Mr Hobson showed Mr Earl his entry permit.
(11) Neither Mr Holl nor Mr Hobson provided Mr Freeman or Mr Earl with a notice of entry under s 119 of the WHS Act or specified any safety issues with the Wheeler Cranes’ crane.
59 Mr Holl and Mr Hobson then inspected the Wheeler Cranes’ crane which stopped when they were present in the slew area.
60 While inspecting the crane, Mr Holl and Mr Hobson entered an area where materials were stored and walked across materials stacked on the ground. At this point a conversation to the following effect occurred:
(1) Mr Freeman said to Mr Holl and Mr Hobson: “That is not the walkway”.
(2) Mr Holl said “I can walk anywhere because there are no signs and bunting to tell me otherwise”.
(3) Mr Freeman said to Mr Holl and Mr Hobson “You guys just walked over materials deliberately. I’m going to take photos of this as evidence. You didn’t do an induction, we would be liable if you hurt yourself”.
(4) Mr Holl said “There is no exclusion zone so we will walk wherever we want. You can’t take photos of us, you can’t take videos. Watch what happens when you take videos of us”.
(5) Mr Freeman said to Mr Holl and Mr Hobson: “You are walking in an unsafe manner, it’s time for you to leave”.
(6) Mr Hobson said to Mr Freeman “I’m not going anywhere, you can come over here and make me leave”.
61 After inspecting the crane, Mr Holl or Mr Hobson told Mr Freeman and Mr Earl they had to shut the crane down and pack up the crane. When Mr Freeman asked them what their safety concerns were, either Mr Holl or Mr Hobson identified that the slings were frayed and the safety pins were not installed in the outriggers. Mr Freeman then arranged for the frayed slings to be packed away and the safety pins inserted into the outriggers.
62 Despite the safety issues identified by either Mr Holl or Mr Hobson being rectified, Mr Holl and Mr Hobson continued to demand that the Wheeler Cranes’ crane be removed from the site. Mr Holl said to Mr Freeman words to the effect “No you need to pack up the crane and remove it from the site. We are not leaving until the crane is gone”.
63 Mr Freeman refused to remove the crane from the site and requested Mr Holl and Mr Hobson provide a written notice of their safety concerns. Mr Holl said words to the effect: “No, there’s nothing stating that I need to give you anything in writing. You need to shut it down”.
64 Mr Holl then complained to Mr Freeman about the stored materials area, claiming that the crane had to be moved in order to tidy the area up. Mr Freeman told them he would bunt off the area and tidy it up over the weekend.
65 At about 1:30 pm, Darren Wilton (the Senior Project Manager) arrived on the site and spoke to Mr Holl and Mr Hobson. He told them that access to the crane and the stored materials area would be rectified over the weekend. In response, Mr Holl said to Mr Wilton “We’re not leaving until the crane leaves”. Mr Wilton and Mr Freeman asked Mr Holl and Mr Hobson to leave the site, but they refused. Mr Hobson squatted down and said words to the effect “I’m not going to leave. I’m in a safe place here, I don’t need to leave”.
66 At about 2:00 pm, Mr Wilbow and Mr Smallman arrived at the San Clemente Site, attended the site office and were escorted to where the Wheeler Cranes’ crane was situated. Mr Wilbow and Mr Smallman had a conversation with Mr Holl and Mr Hobson in which:
(1) Mr Holl complained that the crane slings were dirty, that the CraneSafe report was not with the crane and there were no handrails on the truck carrying structural steel to assist the dogman to climb onto the truck.
(2) Mr Smallman said those complaints that the crane slings were dirty, and that the CraneSafe report was not with the crane were not issues, and Mr Smallman pointed out the CraneSafe sticker on the crane certifying it had passed inspection.
(3) Mr Holl said “The sticker is irrelevant”.
67 At about 2:30 pm, David Little (Director of North Construction) approached Mr Smallman and Mr Wilbow and a conversation to the following effect occurred:
(1) Mr Little said to Mr Wilbow and Mr Smallman “It’s 2:30 pm on Friday arvo, we are going to call it”.
(2) Mr Smallman said “We are prepared to work, the crane is fine to work”.
(3) Mr Little said “It’s not worth the effort, pack it up”.
68 Mr Little then advised Mr Holl and Mr Hobson that the crane was going to be packed up. Mr Holl said to Mr Little “You are packing it up and sending it away?”, which Mr Little confirmed. Mr Holl then said “Well that’s my job done here”. Shortly afterwards Mr Holl asked Mr Little “So just to confirm you are sending the crane home?” After Mr Little confirmed this again, Mr Holl said “Well that’s my job done”. Mr Holl also said to Mr Freeman “I’ll wait here until the crane leaves the site”.
69 After being packed up, the Wheeler Cranes’ crane left the site at about 2:45 pm. Before the delivery truck carrying the steel could leave the site, Mr Freeman had to ask Mr Holl to move his utility out of the way to allow the truck to leave. A conversation to that effect occurred.
70 Mr Holl moved his utility, after which the truck and crane were able to leave the site. At the time of their leaving the site the group of men congregated outside the site in Crebert Street cheered loudly.
71 Neither Wheeler Cranes nor North Construction were provided with any notice under s 119 of the WHS Act for the safety matters raised by Mr Holl and Mr Hobson on 19 October 2018 at the San Clemente Site.
72 By their conduct, Mr Holl admits that, when exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act, namely inquiring into a suspected contravention of the WHS Act that affected relevant workers at the San Clemente Site under s 117 of the WHS Act, each intentionally hindered or obstructed other persons in contravention of s 500 of the FW Act. It is also admitted that Mr Hobson aided, abetted, and/or was directly or indirectly knowingly concerned in, or party to, Mr Holl’s contravention of s 500 of the FW Act.
73 The CFMMEU admits that by reason of Mr Holl and Mr Hobson’s conduct and state of mind, it was directly or indirectly knowingly concerned in, or party to, Mr Holl’s contravention of s 500 of the FW Act.
KCT – 22 October 2018
74 On or about 18 October 2018, PWCS engaged Wheeler Cranes and Borgers to provide mobile crane services to the KCT for the purpose of carrying out or assisting with alteration, repair or restoration work to a coal reclaiming machine and a coal conveyor, both of which formed part of the land at the KCT on 22 October 2018.
75 By about 6:30 am on 22 October 2018, groups of men, some dressed in CFMMEU branded clothing, carrying CFMMEU banners and flags (the protesters), had assembled outside the KCT gates, including the Port of Newcastle Gate and the adjacent KCT Stores Compound Gate (the SC Gate).
76 At about 7:00 am, two Wheeler Cranes’ mobile cranes and a truck arrived at the KCT and parked in Raven Street waiting to be admitted to the KCT. Mr Carlin and Mr Miller opened the SC Gate. As they did so, a protester was standing in front of the SC Gate in a position which blocked any vehicle which sought to enter the SC Gate. Mr Carlin asked him to move, but he refused. Mr Van Dyke then instructed the Wheeler Cranes’ crane drivers to move to enter the KCT through the SC Gate. As one of the cranes and the truck moved from Raven Street towards the SC Gate, two of the protesters walked in front of the crane and truck, one carrying a CFMMEU flag, and positioned themselves so that if the crane and truck attempted to enter the KCT they would have had to collide with the protesters. This action caused the crane and truck to stop.
77 Mr Carlin approached the two protesters and asked them if they intended to blockade the KCT site and stop the cranes from entering the stores compound (Stores Compound). One of the protesters said: “Yes, I’m not going to move”, and the other said: “I’m not sure”.
78 Mr Carlin told the protesters that he would call the Police. Mr Miller then called the Police and asked them to attend the KCT.
79 At about 7:20 am, while the protesters were still blocking the crane and truck from entering the KCT, Mr Holl and Mr Hobson arrived at the KCT in separate vehicles. Mr Hobson alighted from his vehicle and went to speak to the protesters, who then remained where they were. Mr Holl alighted from his vehicle and approached Mr Carlin and Mr Miller. A conversation to the following effect then occurred:
(1) Mr Holl said “Last week I told you to change the colours on the cranes and there would not be any issues”.
(2) Mr Carlin said “We don’t have to change the companies, the issue is not with Port Waratah”.
(3) Mr Holl said “You can change, but you don’t want to listen”.
(4) Mr Carlin said “We have independently engaged Wheeler and Borger to provide crane services until the issue between Boom and the union is resolved”.
(5) Mr Holl said “It will get ugly today if Wheeler Cranes come on site”.
80 After they arrived, Mr Holl did not advise or request the protesters to stand aside and allow the Wheeler Cranes’ cranes and truck to enter the KCT.
81 Mr Holl and Mr Hobson joined in with the protesters and they and some of the protesters stood by the stopped crane and truck and spoke to the crane drivers, including Mr Peterson. About 20 minutes later, one of the drivers approached Mr Miller and Mr Carlin and said “I am very uncomfortable and I don’t like the environment”.
82 Mr Peterson telephoned Mr Smallman and told him the situation was getting heated and that Wheeler Cranes should leave KCT. Mr Smallman agreed and instructed Mr Peterson to bring the cranes and truck back to the Depot. The cranes and truck left the KCT at about 7:40 am.
83 Between the departure of the Wheeler Cranes’ vehicles and the arrival of the Police, Mr Holl, Mr Hobson and the protesters remained standing and walking around the vicinity of the SC Gate.
84 Between 8:00 am and 8:15 am, four police officers and Police Inspector Buggy arrived at the KCT. Mr Van Dyke contacted Wheeler Cranes, told them the Police were present and asked them to return. Mr Smallman, Mr Wheeler and Mr Wilbow then discussed the situation at the KCT and agreed they would not ask employees to run a picket and decided to drive a crane and truck to the KCT themselves.
85 At about 8:25 am, a Borgers’ crane and truck arrived and entered the KCT through the SC Gate. In relation to the Borgers’ crane:
(1) At the time of its entry to the KCT, none of the protesters, Mr Holl or Mr Hobson sought to intervene or block the access to the KCT, or protested at such access.
(2) Neither Mr Holl nor Mr Hobson requested access to inspect the Borgers’ crane.
(3) Neither Mr Holl nor Mr Hobson made any statement to PWCS’ representatives or the Police that they suspected any health and safety issues with the Borgers’ crane.
86 At about 9:55 am, the Wheeler Cranes’ crane and truck arrived, driven by Mr Wilbow and Mr Wheeler.
87 The Police requested the protesters to stand away from the SC Gate. The crane and truck entered the KCT and stopped about 50 metres inside the SC Gate. Immediately after the crane and truck entered the KCT, Mr Sears began closing the SC Gate. Mr Holl and Mr Hobson walked through the gate. Mr Holl said “You can’t close the gate, we have right of entry”. By this time, each of Mr Holl and Mr Hobson reasonably suspected that one or more contraventions of the WHS Act had occurred or were occurring. Mr Holl and Mr Hobson then walked through the closing gates and entered the KCT, whilst showing their right of entry permits.
88 After a conversation involving the Police, Mr Holl and Mr Hobson inspected the crane and truck. During the inspection of the truck, Mr Holl climbed up onto the trailer. Mr Smallman asked him to get down off the trailer. Mr Holl said to Mr Smallman “I have a right to do whatever I want and can look at whatever I want”.
89 After the inspection, Mr Holl told Mr Carlin there was an untagged shackle and sling holding the crane hook to the cabin, no flashing light on the truck, and unreadable tags on the truck equipment. Mr Smallman told them that the shackle and sling holding the crane hook to the cabin was a restraint during travel and was not lifting gear under load. Both Mr Holl and Mr Hobson said words to the effect “The strap is under load it’s a lifting device”. Mr Holl demanded to see “All the paperwork for the truck and the crane”. When asked by Mr Smallman and Mr Carlin what paperwork they wanted to see, Mr Holl replied “I don’t know. Whatever you usually supply. The inspection won’t be completed until I have all the paperwork” and “All these things need to be produced before the inspection is completed. The crane and truck are going nowhere”. After being supplied with the pre-start log books, Mr Holl claimed they had not been completed. Mr Holl demanded to see the high risk work licences of the crane operators, which Mr Smallman refused to provide on the basis that they were not required to be provided. Mr Sears requested several times that Mr Holl and Mr Hobson provide a notice of entry, to which Mr Holl repeatedly replied that he did not need to supply one. When Mr Wheeler and Mr Wilbow sought to move the crane and truck to another fenced off area, Mr Holl and Mr Hobson took turns in standing in front of the crane and truck preventing them being moved.
90 As a consequence of the actions of Mr Holl and Mr Hobson, the Wheeler Cranes’ crane and truck could not proceed to the position allocated for it by PWCS.
91 At about 11:45 am, Mr Sears decided to clear the Stores Compound area of all personnel and lock it up and leave the crane and truck where they were. Mr Sears had a conversation with Mr Holl and Mr Hobson to the following effect:
(1) Mr Sears advised Mr Holl and Mr Hobson that the Police and other personnel were leaving and the SC Gate was to be locked, but they could stay if they wanted.
(2) Mr Holl consulted with Mr Hobson and then told Mr Sears that they were staying and would stay for as long as it takes, even into the night.
(3) Mr Sears said they could call him if they wanted to leave.
92 PWCS then cleared the Stores Compound of all persons except Mr Holl and Mr Hobson and locked the gates. Mr Carlin arranged for a security guard to stand outside the gates, and for CCTV to be installed to provide surveillance of the Wheeler Cranes’ crane and truck.
93 At about 4:00 pm, Mr Holl and Mr Hobson asked to be let out of the Stores Compound and the security guard let them out. At a meeting between Mr Wheeler, Mr Wilbow, Mr Sears, Mr Carlin and Mr Van Dyke that afternoon, Mr Sears advised Mr Wheeler and Mr Wilbow that they would engage Borgers to provide crane services to PWCS for the immediate future, but that PWCS would commit to pay Wheeler Cranes for the hire of the cranes for the day.
94 At about 5:20 pm, Mr Wheeler and Mr Wilbow drove the Wheeler Cranes crane’ and truck out of the KCT and back to the Depot.
95 By his conduct, Mr Holl admits that he took action against PWCS with the intent to coerce PWCS not to engage Wheeler Cranes in contravention of s 355(b) of the FW Act. Mr Holl also admits that when exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act, namely inquiring into a suspected contravention of the WHS Act that affected relevant workers at the KCT under s 117 of the WHS Act, he intentionally hindered or obstructed other persons in contravention of s 500 of the FW Act.
96 By his conduct, Mr Hobson admits that he was directly or indirectly knowingly concerned in, or party to, Mr Holl’s contravention of s 500 of the FW Act.
97 The CFMMEU admits that by reason of Mr Holl’s conduct and state of mind, it contravened s 355(b) of the FW Act. It is also admitted that by reason of Mr Holl and Mr Hobson’s conduct and state of mind, the CFMMEU was directly or indirectly knowingly concerned in Mr Holl’s contravention of s 500 of the FW Act.
Legal principles
98 The primary purpose of any civil penalty regime is to ensure compliance with the statutory regime by deterring future contraventions: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (Agreed Penalties Case (HC)) at [24]. The principal object of an order that a person pay a pecuniary penalty is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 at [116]. Civil pecuniary penalties are “primarily if not wholly protective in promoting the public interest in compliance [with the statute]”: Agreed Penalties Case (HC) at [55], [59], [68] and [110]; and see Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580 (Pattinson) at [25].
99 The process of arriving at the appropriate civil penalty involves an intuitive or instinctive synthesis of all of the relevant factors: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330; (2015) 327 ALR 540 at [6]; TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; (2012) 210 FCR 277 at [145]. Instinctive synthesis is the method by which the judge identifies all the factors that are relevant to the penalty and, after weighing all of those factors, reaches a conclusion that a particular penalty is the one that should be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (Markarian) at [37], and see [51]. Although this is the imposition of a civil penalty and therefore the features of sentencing such as retribution, denunciation and rehabilitation applied in Markarian do not apply, “the approach in Markarian remains relevant as a convenient way to express an evaluative process to which many factors may be relevant in reaching a conclusion of an appropriate penalty necessary in the circumstances for the object of deterrence, without exceeding what is reasonably necessary and thus becoming oppressive, in respect of a contravention of a kind before the court”: Pattinson at [112].
100 In common with criminal sentencing, the maximum penalty fixed by the Parliament remains a “yardstick” against which any process of assessment is to proceed: Markarian at [30]; Pattinson at [62]. The maximum penalty is not just a limit on power; “it provides a statutory indication of the punishment for the worst type of case, by reference to which the assessment of the proportionate penalty for other offending can be made, according to the will of Parliament”: Pattinson at [62]. It is appropriate to record that special leave to appeal to the High Court has been granted to the ABCC in Pattinson. That said, the decision of this Court in Pattinson is currently binding.
101 The process of assessing a penalty is guided by a consideration of a number of well-accepted factors: Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 (Kelly) at [14], and see Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) ATPR 41-076 (TPC v CSR) at 52,152-52,153; Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; (2008) 177 IR 306 (Rojas (No 2)) at [64]-[65]. It is important to remember that those lists of factors are judicial descriptions of likely relevant considerations applicable to the task of coming to the appropriate penalty, and such lists are useful as long as they “do not become transformed into a rigid catalogue of matters for attention”: Pattinson at [99], citing Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 at [91], and see Pattinson at [100].
102 As the Full Court recently summarised in Pattinson at [98]:
The court’s task is to determine and impose a penalty that it considers “appropriate” if it is satisfied that a person upon whom the penalty is to be imposed has contravened a civil remedy provision. That task is to be undertaken in the light of the object or purpose of the imposition: the promotion of the public interest in compliance with the provision of the statute in question, by deterrence, specific and general. It is clear that the object of deterrence is directed to the subject contravention. That is, it is the deterring of contraventions of the kind before the court to which regard must be had in fixing the penalty that is considered appropriate, by reference to the frame of reference or yardstick provided by the maximum penalty as set by Parliament. Thus, it will always be important to understand the nature, character and full context of the contravening.
103 Section 546 does not authorise the imposition of a penalty which is more than is appropriate to deter a contravention of the kind before the Court: Pattinson at [100], [104], [111]. All the circumstances of the case are to be considered, including the personal circumstances of the contravenor: Pattinson at [193]-[194], which include the history of prior contraventions as it may indicate the seriousness or gravity of the instant contravention by showing a “continuing attitude of disobedience to the law”: Pattinson at [161]-[162], [193]-[194]. While the history of prior contraventions may assist in the proper characterisation of the instant contravention, the Court should not allow it to overwhelm the process so that the character of the instant contravention is changed into something which it is not. To do so is likely to lead to the imposition of a penalty for past conduct: Pattinson at [193]. Any penalty imposed, applying the relevant principles to the circumstances of the case, must not exceed what is proportionate having regard to the contravening conduct in the context of the maximum penalty provided: Pattinson at [201], [227]
104 It was common ground that the relevant factors in a case of this nature include:
(a) the nature and extent of the contravention;
(b) the circumstances in which the contravention took place;
(c) the nature and extent of loss and damage suffered as a result of the contravention;
(d) whether the contravener has engaged in any similar conduct in the past;
(e) the size and nature of the contravener;
(f) whether the contraventions involve senior management;
(g) any contrition or corrective action taken; and
(h) any co-operation with authorities which has been shown.
105 Each of these factors, to the extent they are relevant, are considered below.
Consideration
106 It is accepted by the respondents that the declarations sought by the ABCC should be made and that penalties should be imposed. The ABCC sought a conventional order that penalties be paid to the Commonwealth within 28 days. It did not seek any non-indemnification orders against the personal respondents. The primary issue for consideration is the amount of those penalties.
107 Before turning to specific considerations, it is appropriate at the outset to outline the applicable maximum penalties as at October 2018:
(1) a contravention of s 355(b) of the FW Act, in respect to an individual, $12,600 and corporate body, $63,000;
(2) a contravention of s 500 of the FW Act, in respect to an individual, $12,600 and corporate body, $63,000; and
(3) a contravention of s 52(b) of the BCIIP Act, in respect to an individual, $42,000 and corporate body, $210,000.
108 The ABBC contends there should be separate penalties imposed in respect of each of the five contraventions for Mr Holl, each of the three contraventions for Mr Hobson and five penalties relating to the six contraventions of the CFMMEU, noting that a single penalty may be imposed in respect to the two contraventions of s 52(b) by virtue of the application of s 84(1) of the BCIIP Act.
109 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (The Botany Cranes Case) [2021] FCA 363; (2021) 304 IR 428, Rares J at [85] discussed the statutory purpose of s 355(b) of the FW Act and s 52 of the BCIIP Act :
The Parliament enacted provisions such as ss 47, 52 and 54 of the Act to address the illegitimate use of coercion and undue pressure in the building and construction industry by employers, employees and both interests’ representative bodies, such as trade associations and trade unions. The Parliament acted in the context that it had already established, through the Fair Work Act and the Fair Work Commission, some similar prohibitions in that enactment as in the Act (like s 355 of the Fair Work Act and s 52 of the Act) and an independent mechanism for the formulation and enforcement of fair and transparent workplace standards, including terms and conditions of employment and the ability of that Commission to settle disputes impartially.
110 As is apparent, the statutory purpose of s 355(b) of the FW Act and s 52(b) of the BCIIP Act is similar. The ABCC noted that s 52(b) of the BCIIP Act has a higher maximum penalty for such a contravention, and by setting such a penalty the legislature has clearly marked out offending conduct in the building and construction sector of the economy as requiring greater need for compliance, and deterrent effect. That submission was not challenged.
111 In relation to s 500 of the FW Act, the evident statutory purpose is to ensure that those persons, such as permit holders, who exercise the rights conferred by the FW Act to discharge their duties including in relation to safety matters, do so in a way that does not intentionally hinder and obstruct the performance of work. It is a recognition that whilst the FW Act confers such rights, it strikes a balance between the rights of permit holders, occupiers of premises and those who perform work at the locations at which officials may elect to exercise their rights: see for example, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Flinders University Case) [2016] FCA 413 at [40]-[45]; Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd (No 2) [2017] FCA 1237 at [26].
112 I note also at the outset that the ABCC contends that in respect to Mr Holl, his contraventions should attract penalties in the mid-range to high range for all contraventions other than the coercion contraventions, which are high range. The contraventions of Mr Hobson should fall in the mid-range. It was submitted that each of the contraventions warrant penalties in the high range for the CFMMEU.
113 It is contended by Mr Holl that each of his contraventions fall within the low to medium range, and by Mr Hobson, that his conduct falls in the low range for each contravention.
114 The CFMMEU contended that its contraventions fall within the mid-range.
115 I will return below to the range of penalties the parties contend are appropriate in all the circumstances.
The nature and extent of the contraventions and the circumstances in which they took place
116 The ABCC submitted that the contraventions involved actions taken for prohibited purposes at major work sites in the Newcastle area. The actions of the respondents were deliberate, coordinated, for clearly prohibited purposes, and completely brazen. It submitted that in assessing each person’s culpability in respect of the contraventions, the Court should have regard to all of the contextual facts set out above.
117 It submitted that the critical background fact is that Wheeler Cranes was the object of all the contraventions. At the relevant time, Wheeler Cranes was involved in negotiations with its workforce for the making of a new EBA. The CFMMEU had become involved in those negotiations by virtue of it becoming, through its official, Mr Holl, a representative of some but not all of the employees of Wheeler Cranes. Those enterprise negotiations had reached an impasse.
118 The other background fact the ABCC contended was relevant was that Boom Logistics was also in dispute with its employees who were engaged in protected industrial action authorised by the FW Act. As a result, Boom Logistics was unable, during October 2018, to provide mobile crane services to PWCS. This resulted in PWCS engaging Wheeler Cranes and Borgers to provide mobile crane services. The ABCC submitted that there was a preference from those within the CFMMEU, particularly Mr Holl and Mr Hobson, that Borgers, in the absence of Boom Logistics, supply mobile crane services to PWCS.
119 The ABCC submitted that on each of the days at each of the sites, the conduct of Mr Holl and Mr Hobson had two elements. First, there were demands made by the officials for the removal of Wheeler Cranes’ mobile cranes from the relevant sites or that they cease in operation. Second, there was a defiant refusal to obey any reasonable command made by occupiers and others to leave until Wheeler Cranes’ mobile cranes were either removed from the relevant site or ceased operating.
120 It was submitted that it can be inferred that the conduct was premeditated and deliberate. It was targeted and its object was to secure one of a number of different results. The first was to apply pressure to prevent Wheeler Cranes from being engaged by PWCS. Second, it can be inferred that it was done to further the CFMMEU’s interests in the enterprise bargaining with Wheeler Cranes. A third purpose was to further the CFMMEU’s interests in whatever dispute was occurring with Boom Logistics. Fourth, a purpose appeared to be to secure a result where the preferred mobile crane supplier, Borgers, was engaged. Fifth, a purpose was to lend, by unlawful means, support to the lawful industrial action that Boom Logistics’ employees, at least at one or other sites, had been taking.
121 The ABCC submitted that in particular, in relation to the contraventions of s 355(b) of the FW Act, the conduct of Mr Holl, Mr Hobson and the CFMMEU was clearly intended to exert coercive pressure against third parties which was ultimately directed at Wheeler Cranes. This pressure was exerted through the overt and covert industrial muscle of the CFMMEU, so that Wheeler Cranes would give in to the CFMMEU’s demands in respect of the EBA. In relation to the contraventions of s 52(b) of the BCIIP Act, the same purpose was at play, through different conduct at a different site. It submitted that in relation to the contraventions of s 500 of the FW Act, the conduct of Mr Holl, Mr Hobson and the CFMMEU involved the misuse of the powers of Mr Holl as a WHS permit holder so as to intentionally hinder and obstruct the performance of work at the various sites, and Mr Hobson aided and abetted Mr Holl’s misuse of such power.
122 The ABCC addressed the statutory purpose of each of ss 355(b) and 500 of the FW Act, and s 52 of the BCIIP Act (the contravention provisions).
123 The ABCC made submissions on the respondents’ reliance on safety issues as a justification for the conduct.
124 The ABCC point out that Mr Holl and the CFFMEU have admitted to conduct undertaken with an intent to coerce. Therefore, the demand or insistence that the Wheeler Cranes’ crane not enter the particular sites and the crane be removed from those sites, is done, at least, for a substantial and operative purpose within the meaning of the operation of the provisions, with an intent to coerce. Mr Holl and Mr Hobson might have had some safety concerns relating to the crane, but that is not the substantial and operative purpose that has been admitted. The ABCC took the Court to specific examples in the SOAF. For example, at the San Clemente Site, it was agreed that the following occurred:
Despite the safety issues identified by Holl or Hobson being rectified, Holl and Hobson continued to demand that the Wheeler Cranes crane be removed from the site. Holl said to Freeman words to the effect “No you need to pack up the crane and remove it from the site. We are not leaving until the crane is gone.”
125 Mr Holl and Mr Hobson submitted that the factual basis and seriousness of the contravention, as contended by the ABCC for the penalties sought, is overstated.
126 The personal respondents submitted that the focus should be on the admitted contraventions, and contended in their written submissions that for example, they do not admit the conduct of the protestors. That said, the respondents acknowledged in oral submissions that those matters are part of the agreed facts, and were part of the factual circumstances in which the contraventions occurred.
127 The respondents submitted that there were safety concerns in respect to the cranes. The officials, on the basis of the SOAF, had reasonable suspicions in relation to breaches of the WHS Act. While it is true that their behaviour contravenes the FW Act and BCIIP Act, it was submitted that, contrary to the ABCC’s submission, it could not properly be characterised as at the high end or even towards the high end of the range of seriousness.
128 In respect to Mr Hobson, the submissions emphasised that his liability was accessorial.
129 In respect to the CFMMEU, it supported the submission of Mr Holl and Mr Hobson as to the contraventions. It was submitted that each instance of contravening conduct had the same purpose. It exhibited a strategy of preventing persons doing the work that would normally have been done by the workers who were taking lawful protected industrial action. The conduct was motivated by a wish to prevent persons undermining the legally protected industrial action by doing the work that would normally have been done by the employees who were taking that action.
130 It was also submitted by each of the respondents that the loss to Wheeler Cranes was minimal, referring to the Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 at [20] as support for the proposition that loss or damage is a matter to be taken into account in assessing penalties.
131 In that context I address the conduct.
132 Although initially the respondents attempted to confine the factual matters which were said to be relevant to the imposition of the penalty, as noted above, at the hearing they accepted that they were not challenging the SOAF which contained the factual matters initially challenged. It was accepted by the respondents, as it must be, that it is well settled that in the imposition of a civil penalty, an evaluation is required not only of the “nature and extent of the contravention”, but also of the “circumstances in which the contravention took place”: TPC v CSR at 52,152; Kelly at [14]; Rojas (No 2) at [64]-[65]; The Non-Indemnification Personal Payment Case at [20]. It accepted therefore, that a number of matters challenged in writing were relevant to the circumstances in which the contraventions occurred. That said, even after the respondents’ concession, their submission as to how one considers the circumstances in which the conduct occurred in the imposition of a penalty, was artificial. There is no doubt that the respondents are to have the penalties imposed for the admitted contraventions, but the relevant circumstances in which the contraventions occurred can assist in assessing the seriousness of the contraventions.
133 I accept the characterisation of the conduct by the ABCC. The conduct was deliberate, premeditated, coordinated, and for clearly prohibited purposes. The purpose of the conduct, which was aimed at Wheeler Cranes, appears to have at its heart the impasse that had arisen in the negotiations of the EBA. In respect to the s 355(b) and s 52(b) contraventions, it was clearly intended to exert coercive pressure against third parties which was ultimately directed at Wheeler Cranes, through the overt and covert industrial muscle of the union, to get Wheeler Cranes to give in to the CFMMEU’s demands in respect of the EBA. A number of other purposes, as outlined above by the ABCC, can also be inferred.
134 In relation to the contraventions of s 500 of the FW Act, the conduct of Mr Holl, Mr Hobson and the CFMMEU involved the misuse of the powers of Mr Holl as a permit holder so as to intentionally hinder and obstruct the performance of work at the various sites, and Mr Hobson aided and abetted Mr Holl’s misuse of such power.
135 Mr Holl, Mr Hobson and the CFMMEU have deliberately flouted the law in taking coercive action to secure a desired result by that unlawful means. Their conduct impacted upon third parties (PWCS and 3 Cross) and was undertaken with an intention to coerce them and put pressure on Wheeler Cranes.
136 In so far as one of the purposes of their actions was to secure a result where the preferred mobile crane supplier, Borgers, was engaged, that result in fact ensued. On 22 October 2018, Mr Sears, an officer of PWCS, advised Mr Wheeler that they would engage Borgers to provide crane services to PWCS for the immediate future. This was in the face of two days of actions, which it can be inferred, resulted in disruption to PWCS’ ability to conduct its work.
137 I note also in this regard, that for example, in respect to the acts on 22 October 2018, it can be inferred that at least Mr Holl and the CFMMEU were able to influence the protestors.
138 I appreciate that Mr Hobson’s liability is accessorial, however such involvement is treated the same way as a direct contravention: s 550 of the FW Act. Although not the principal protagonist, Mr Hobson lent support to Mr Holl’s conduct. There are also three contraventions for Mr Hobson, whereas Mr Holl faces five contraventions. The three contraventions relate to conduct on 19 and 22 October 2018, and do not involve the incidents at the KCT on 18 October 2018. These matters necessarily impact on the ultimate penalty imposed.
139 In so far as the respondents’ submissions may appear to suggest some lesser or more confined purpose than that advocated by the ABCC, it is not accepted.
140 In so far as the respondents submit that the SOAF reflect that the respondents had reasonable suspicions in relation to breaches of the WHS Act, I note that the SOAF does have two passages in relation to that topic. However, as illustrated by the ABCC in its submission, a proper reading of the SOAF does not support the general assertion. For example, as to the one passage referred to by the respondents where it was said they had a reasonable suspicion, the SOAF reflects that the identified safety issues were rectified, but nonetheless the respondents insisted the crane be removed from the site (without any apparent explanation). That said, most importantly, by their admissions the respondents have accepted that the substantial and operative purpose for their conduct was an intent to coerce. This is in a context where the conduct was part of a deliberate and premeditated strategy carried out by the CFMMEU and its officials. It follows that the submission that the respondents had reasonable suspicions in relation to supposed safety concerns (if such a suspicion existed), does not mitigate the seriousness of their conduct.
141 In that context also, as the ABCC correctly contended, Mr Holl and Mr Hobson engaged in conduct that:
(1) involved non-compliance with s 119 of the WHS Act by not giving notice of entry and the suspected contravention to the occupiers and Wheeler Cranes, as soon as was reasonably practicable after entering the workplace, in accordance with cl 28 of the Work Health and Safety Regulation 2017 (NSW) and setting out the particulars of the suspected contravention. The failure to give proper notice gives rise to an inference that they had no reasonable basis for suspecting a contravention of the WHS Act before entry;
(2) to the extent that particulars of suspected contraventions were provided, they did not provide such particulars in writing as soon as practicable after entry but did so only after inquiries had taken place following entry which appeared to match matters identified during inquires and were not contraventions reasonably suspected by Mr Holl and Mr Hobson before entry;
(3) caused significant disturbances whilst on site including stopping workers performing work on the cranes; and
(4) demanded, without any power to do so, that Wheelers Cranes’ cranes be removed from the site irrespective of the nature of the identified safety issue or that the issue had been resolved.
142 In so far as the respondents point to minimal loss as diminishing the seriousness of the conduct, I note that loss is not an element of the contraventions. Evidence of substantial loss may aggravate a contravention, but the absence of an aggravating factor is not a mitigating factor.
143 Before leaving this consideration, I note that there was debate during the hearing about the applicant’s reference in its written submission to a passage from The Botany Cranes Case where Rares J described the CFMMEU’s conduct in that case as being in the high end of seriousness and warranting the imposition of severe penalties. The respondents took issue with the relevance and applicability of that case to these proceedings, which it said was significantly different. That submission appears to have proceeded on a misunderstanding of the ABCC’s reliance on The Botany Cranes Case. It was not suggested by the ABCC that it was a case in which the penalties imposed were in any way comparable to what ought to be imposed here. Rather, the ABCC only referred to it as the CFMMEU’s conduct in each case had similar characteristics. Suffice to say, each case turns on its own facts.
Section 84 of the BCIIP Act
144 The parties accepted that s 84(1) of the BCIIP Act applies to the two contraventions of s 52(b) of the BCIIP Act by the CFMMEU based on the conduct of Mr Holl and Mr Hobson on 19 October 2018 at the Newcastle TAFE Site. That explains why, as noted at [108] above, there are five penalties sought for the six contraventions by the CFMMEU. However, s 84(2) imposes a higher maximum penalty where the provision is enlivened than that which would apply to a single penalty. Section 84 is in the following terms:
84 Multiple contraventions
(1) A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil remedy provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
(2) However, any pecuniary penalty imposed must not exceed the sum of the maximum penalties that could be ordered if a separate pecuniary penalty were ordered for each of the contraventions.
145 The maximum penalty applicable in this instance is the sum of that which could be imposed separately for each of the two contraventions by the CFMMEU of s 52(b): s 84(2). It follows that the maximum penalty is $420,000.
146 The CFMMEU submitted that while the maximum penalty under s 84(2) is greater than the maximum penalty for one contravention, in the circumstances of this case, in which the conduct of Mr Hobson was no more than accessorial to the conduct of Mr Holl, there should not be a penalty assessed on the basis of more than the maximum penalty for one contravention. It was submitted that was the approach taken in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070; (2020) 299 IR 231 at [179] and Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105 at [49]-[51]. The ABCC submitted that even if Mr Hobson’s conduct was as an ‘accessory’ to Mr Holl’s conduct, it does not follow that their conduct was the same. Mr Hobson acted as a separate individual with separate acts in supporting the actions of Mr Holl or at least did not take steps to contradict or disassociate himself from Mr Holl’s conduct. The maximum penalty capable of being imposed for each separate contravention, taken together, should be the starting point in s 84(2).
147 Neither The Constitution Place Case nor The North Queensland Stadium Case suggest s 84 is to be approached as if the maximum penalty available was for a single contravention, but rather each case turned on an assessment of the particular facts. In each, the Court recognised that the effect of s 84(2) was to increase the maximum penalty.
148 The ABCC are correct in asserting that Mr Hobson’s conduct was not the same as Mr Holl’s, and that he acted as a separate individual. There are two contraventions of s 52(b) committed by the CFMMEU, which must be considered in assessing the appropriate penalty. The effect of any factual overlap between contraventions which might arise by imposing one penalty by virtue of s 84, is necessarily case specific. That said, the ABCC’s submission as to the appropriate penalty to be imposed on the CFMMEU as reflected in the table at [189] below, which is that the same penalty is warranted in respect to each of the two contraventions with the one penalty being the sum of those penalties, fails to recognise the circumstances of the case and the different roles in the contraventions played by Mr Holl and Mr Hobson (see above at [85]).
Course of conduct
149 Both the CFMMEU and the personal respondents submitted that the single course of conduct principles apply. It is assumed this principle is relied on to say that only a single penalty should be imposed for the contraventions, or groups thereof, although the purpose behind the submission was not clearly articulated. Indeed, the CFMMEU’s submission as to the penalty range said to be appropriate, addresses each contravention individually.
150 Ordinarily, separate contraventions attract separate penalties. However, where separate acts giving rise to separate contraventions are inextricably interrelated, they may be viewed as a single ‘course of conduct’. This principle need not be applied in every case, but it is a “useful tool of analysis” that can help avoid double punishment for those parts of legally distinct contraventions which involve wrongdoing: Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172 (Wooldridge) at [25] citing Australian Competition and Consumer Commission v Cement Pty Ltd [2017] FCAFC 159; (2017) 258 FCR 312 at [421]-[424]; Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 at [234].
151 The personal respondents referred to the following passage from Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 4) [2012] FCA 894; (2012) 225 IR 113, where Katzmann J at [14] observed that it:
…is not a principle peculiar to the industrial context. It derives from the criminal law. Its purpose is to avoid oppression, through penalising someone twice for what is essentially the same criminality
152 Pausing there. Given the respondents’ submission as to the basis of the course of conduct principle applying in this case, it is appropriate to refer to the next two sentences following that passage:
For this reason, it is necessary to carefully identify what the criminality (in this case, culpability) is. The same motive will rarely be enough.
153 In determining whether there was a single course of conduct, the Court should examine the substance, not the mere existence, of the contraventions.
154 The personal respondents submitted that the test for determining a “course of conduct” was referred to in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 (Cahill) at [39] as follows:
The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality.
155 Mr Holl and Mr Hobson submitted that a proper grouping of contraventions would result in a conclusion that all of Mr Holl’s actions were part of the same course of conduct. There is a clear interrelationship between the factual and legal elements of the conduct of Mr Holl leading to the different contraventions. A similar analysis would result in a conclusion that all of Mr Hobson’s actions were part of the same course of conduct. It was submitted that in the alternative, at a minimum the Court should conclude that all of the events on 19 October 2018 should be grouped for each of Mr Holl and Mr Hobson, as should all of the matters at KCT over 18 and 22 October 2018 for Mr Holl.
156 The CFMMEU contended that the Court should assess the penalties to be imposed in relation to its contraventions on the basis that some or all of them were part of the same course of conduct engaged in by the CFMMEU. It was submitted that the contravening conduct involved a coordinated strategy of preventing persons doing the work that would normally have been done by the workers who were taking lawful protected industrial action.
157 The ABCC opposed the respondents’ characterisation. Referring to the relevant principles, the ABCC submitted that consistent with the authorities, the conduct on each day must be treated separately. It submitted that it is clear that Mr Holl and Mr Hobson engaged in different conduct on each day at different sites. Their conduct at each site on 19 October 2018 was of a different quality; there was no factual overlap. It is appropriate that the Court impose separate penalties for contraventions of separate provisions for each day that the conduct occurred.
158 In Cahill at [39], the Court observed (emphasis in original):
As the passages in Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171, (2009) 262 ALR 417 explain, a “course of conduct” or the “one transaction principle” is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is “the same criminality” and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.
159 And see: Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; (2019) 270 FCR 39 at [268] ff.
160 In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59; (2019) 269 FCR 262, Allsop CJ at [10]-[12] observed:
[10] I agree with the judgment of Rangiah J that the learned primary judge erred in drawing from her conclusion that on each of the nine days of industrial disruption there was a single course of conduct that a single penalty should be imposed on each day — that is, that only one maximum penalty was available where there were multiple contraventions that constituted a single course of conduct. This is the same error discerned in the primary judge’s reasoning and approach in Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 at [241].
[11] But that error, in my view, had its genesis in the task that the primary judge set herself immediately antecedently. Her Honour asked whether there was a single course of conduct as if (in the absence of the relevant operation of a provision such as s 557 of the Act) there were a single thing or conception of “a course of conduct”. As the Full Court said in Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40 (TWU v ROC) at [91]:
…Absent the relevant application of a provision such as s 557(1) of the Fair Work Act, the task is to evaluate the considerations informing the contraventions (factual and legal) in order to impose appropriate penal relief that does not punish twice for the same conduct. To use a phrase such as “a course of conduct” may imply that there is such an abstracted concept to be found, and once found it implies a single contravention or a single maximum penalty. That is the danger of the phrase. Rather, it is necessary (in the absence of a statutory enquiry such as in s 557(1)) to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penal orders, in particular to avoid double punishment. We see nothing in Williams or The Agreed Penalties Case that was intended to displace the need to consider the statute in question and to recognise that the object of the course of conduct principle is to avoid double punishment.
[12] The danger in the use of the phrase identified by the Full Court in TWU v ROC occurred here: in finding a single course of conduct, the primary judge confined the penal response to one determined by reference to one maximum penalty. The preferable enquiry, conformable with the purpose of the principle and with what was said in TWU v ROC is “to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penal orders, in particular to avoid double punishment.” This enquiry may involve the finding of factual and legal overlap and interrelationship among the contraventions. A conclusion that there is such an interrelationship or overlap, and so, to use the expression, a course of conduct, does not mark the end of the enquiry, but the beginning of one: How, given the nature of the interrelationship or overlap, should that affect the proper fixing of penalties for the found contraventions so as to avoid multiple punishment for the same offending?
161 And see Rangiah J at [123]-[129].
162 It is necessary to focus on the facts of this case, as each case turns on its own facts. I do not accept the respondents’ characterisation of the conduct.
163 As a starting point, the contraventions occurred on four different occasions, at three different sites and on three different days. That all of the contraventions resulted in disruption to the work sites and had the same purpose behind them does not in this case, of itself, make it a course of conduct for the purpose of the application of this principle.
164 On 18 October 2018, at the KCT site, Mr Holl was involved in demanding the removal of the Wheeler Cranes’ crane, which occurred in the context of the protest, causing dislocation and disruption to other people at the KCT. That conduct was carried out with intent to coerce PWCS not to engage Wheeler Cranes. By contrast, the conduct which occurred the next day at the Newcastle TAFE Site was different in nature. It was directed towards a different subcontractor on a different site. The conduct in relation to that site was a contravention of s 52(b) of the BCIIP Act, and involved entering the site without a proper basis and refusing to leave until the Wheeler Cranes’ crane was removed, with intent to coerce 3 Cross not to engage Wheeler Cranes. Later that day, at the San Clemente Site, the contravention was of s 500 of the FW Act, in demanding that the Wheeler Cranes’ crane be removed from the site even though no genuine safety issues existed to require its removal, despite the rectification of safety issues and the reasonable proposals to rectify any outstanding issues, and then refusing to leave the site until the crane was removed, which prevented the crane operating and carrying out building work scheduled to be performed that day.
165 On 22 October 2018, there was a breach of s 355(b) of the FW Act at KCT, by reason of Mr Holl’s conduct in hindering or preventing Wheeler Cranes and its employees entering the KCT to perform work for, or to supply services to, PWCS, which PWCS was contracted to provide to others. There was also a contravention of s 500 of the FW Act on 22 October 2018 at KCT by reason of Mr Holl’s conduct in intentionally hindering or obstructing persons from Wheeler Cranes and PWCS by standing in front of Wheeler Cranes’ crane and truck to prevent them being moved.
166 A proper consideration of the SOAF reflects that the conduct at each site was different, albeit that the underlying motive may have been the same. That said, in respect to 22 October 2018, Mr Holl and the CFMMEU did admit two contraventions, but they are separated in time, and relate to different acts by them. That is, it is not a situation where two contraventions arise from the same act.
167 The only basis advanced by the respondents for the conduct being a course of conduct is that it had the same underlying purpose. The conduct may be part of the one industrial campaign but a series of deliberate acts, at different sites, does not give rise for concerns of double punishment. That is, that the respondents would be punished twice for the same conduct. The actions in respect to each contravention are separate. There is no interrelationship between the legal and factual elements of the contraventions, such as to invoke this principle. That said, although there is no issue of double punishment, the principle of totality may need to be considered.
168 It follows that separate penalties should be imposed in relation to each of the respondents’ contraventions (with the exception of the CFMMEU’s two contraventions of s 52(b) of the BCIIP Act, which attract a single penalty).
Whether the contravener has engaged in any similar conduct in the past
169 Mr Holl and Mr Hobson have no prior contraventions.
170 However, the CFMMEU has been found to have contravened industrial legislation on numerous occasions since around 2003. The prior contravening conduct of the CFMMEU was provided by the ABCC which contained reference to 182 cases, and it is unnecessary to repeat here. The contravention record speaks for itself in evidencing the CFMMEU’s recidivism. The CFMMEU’s repeated failure to obey Commonwealth workplace relations legislation is self-evident.
171 In Pattinson, Allsop CJ, White and Wigney JJ at [161] observed:
The history of contravention “may assist in the proper characterisation of the instant contravention” because it may tell one something of its seriousness or gravity by showing a “continuing attitude of disobedience to the law”: Veen (No 2) at 477. The caution to which Bromwich J referred inheres in a proper understanding of Veen (No 2). The caution concerns not using past conduct to impose a penalty disproportionate to the nature, gravity and seriousness of the instant contravention and thereby, effectively, re-penalising past conduct.
Cited with approval in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7 at [38].
172 In Pattinson, Besanko and Bromwich JJ observed relevantly at [227(3)]:
Prior history may be relevant to an assessment of the seriousness or gravity of the instant contravening conduct, but neither that history, nor the object of deterrence, can result in a penalty that is disproportionate to the contravening conduct itself, having regard to the maximum penalty provided.
173 It follows that, being conscious of the caution in Pattinson, the long history of the CFMMEU's contraventions influences the characterisation of the present contraventions it has admitted, because that history demonstrates a continuing attitude of disobedience to the law.
The size and nature of the contravener
174 The CFMMEU did not take issue with the ABCC’s submission that it is a large, prominent and influential national union. It is both cash and asset rich. The evidence supports the conclusion that the CFMMEU is of substantial size and has resources available, or is in a position to make such resources available to pay the penalties suggested without threatening its overall financial viability.
Whether the contraventions involve senior management
175 It is not contended by the ABCC that the contraventions involve senior management.
Any cooperation with the authorities which has been shown
176 As outlined at the outset of these reasons, admissions were made to an ASOC shortly before the hearing. This is in a context where the matter had been instituted in December 2019 and was originally listed for hearing in April 2021. The admissions have utilitarian value, as the hearing on liability was listed to proceed over two weeks. The respondents have, albeit belatedly, shown a willingness to accept responsibility for their actions and to facilitate the course of justice. The fact that the proceedings were not defended saved the community the expense of a potentially lengthy contested hearing: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Queensland Infrastructure Case) [2017] FCAFC 113; (2017) 254 FCR 68 at [163].
Any contrition or corrective action taken
177 There is no evidence of any contrition or corrective action.
Any other matter of mitigation
178 Mr Holl and Mr Hobson submitted there are extra-curial consequences that arise from a finding of contravention that need to be considered as a matter of mitigation affecting penalty. The FW Act sets out a series of provisions that require the examination of a person's capacity to continue to hold an entry permit in circumstances where the permit holder has been found to have contravened a section of the FW Act. Section 508 allows the Fair Work Commission (FWC) to impose conditions upon entry permits, suspend entry permits or revoke them. It was submitted that the Court should consider that imposing a pecuniary penalty in respect of a contravention of s 500 mandates, pursuant to s 510, that the FWC must revoke or suspend a permit holder's permit unless it is satisfied that that would be harsh or unreasonable in the circumstances. The Court should also consider s 513 of the FW Act in relation to future applications for an entry permit in circumstances where the person may not be a fit and proper person as a consequence of orders made by the Court. It was submitted that these extra-curial consequences mean that the making of the declarations, which have been agreed by the individual respondents, will already have a significant deterrent effect on those respondents, and on respondents generally who hold permits under Part 3-4 of the FW Act. This will affect the consideration for the Court as to an appropriate level of any pecuniary penalty to be imposed on those individuals in order to reflect both specific and general deterrence.
179 I do not accept the submission made. No authority is cited in support of the proposition. As the ABCC submitted, there is a singular cohesive regime and any potential impact on Mr Holl or Mr Hobson’s permits are the consequences that may naturally flow from a person who takes the privilege of being a permit holder. This is not dissimilar to the Corporations Act 2001 (Cth) where there are consequences that may follow if a director engages in contraventions. For example, a director may be banned or disqualified from holding directorships. That there may be consequential effects for a contravention of an Act is unremarkable.
Penalties
180 As noted above, the ABCC submitted that Mr Holl’s contraventions should attract penalties in the mid-range to high range for all contraventions other than the coercion contraventions which are high range, and the contraventions of Mr Hobson in the mid-range. The penalties they seek are as follows.
Mr Holl and Mr Hobson
181 In respect to Mr Holl, the ABCC sought the following penalties:
Contravention | Maximum penalty | Mid-range (70%) | High range (80%) |
s 355(b) FW Act (KCT – 18 October 2018) | $12,600 | N/A | $10,080 |
s 355(b) FW Act (KCT – 22 October 2018) | $12,600 | N/A | $10,080 |
s 500 FW Act (KCT – 22 October 2018) | $12,600 | $8,820.00 | $10,080 |
s 500 FW Act (San Clemente Site – 19 October 2018) | $12,600 | $8,820.00 | $10,080 |
s 52(b) BCIIP Act (Newcastle TAFE Site – 19 October 2018) | $42,000 | N/A | $33,600 |
Total | $92,400 | $64,680 | $73,920 |
182 In respect to Mr Hobson, the ABCC sought the following penalties:
Contravention | Maximum penalty | Mid-range (60%) | Mid-range (50%) |
s 500 FW Act (KCT – 22 October 2018) | $12,600 | $7,560 | $6,300 |
s 500 FW Act (San Clemente Site – 19 October 2018) | $12,600 | $7,560 | $6,300 |
s 52(b) BCIIP Act (Newcastle TAFE Site – 19 October 2018) | $42,000 | $25,200 | $21,000 |
Total | $67,200 | $40,320 | $33,600 |
183 Although Mr Holl and Mr Hobson challenged the characterisation of the conduct, and contended it was low to medium range for Mr Holl and low range for Mr Hobson, they did not advance what they suggested fell within that range.
184 In respect to Mr Holl, I find that the contraventions of s 355(b) of the FW Act and s 52(b) of the BCIIP Act are between the mid and high range. The contraventions of s 500 are mid-range. Mr Holl’s characterisation of the conduct being low to mid-range fails to recognise the nature of the conduct, being deliberate, coordinated and premeditated. Mr Holl deliberately flouted the law to secure the desired results by unlawful means.
185 Mr Hobson’s conduct was mid-range in respect to all the contraventions. That he was an accessory does not necessarily render the conduct any less serious. However, in the factual circumstances of this case, Mr Holl was the primary mover and the penalties imposed should reflect the difference.
186 Having taken into account and weighed all the relevant considerations as applied to the facts in this case, and the purpose behind the relevant statutory provisions, in my view the appropriate penalties are as follows.
187 In respect to Mr Holl’s contraventions, the appropriate penalties are:
(1) Section 355(b) FW Act (KCT – 18 October 2018) - $8,800;
(2) Section 52(b) BCIIP Act (Newcastle TAFE Site- 19 October 2018) - $29,000;
(3) Section 500 FW Act (San Clemente Site - 19 October 2018) - $7,500;
(4) Section 355(b) FW Act (KCT – 22 October 2018) - $8,800; and
(5) Section 500 FW Act (KCT – 22 October 2018) - $7,500.
188 In respect to Mr Hobson’s contraventions, the appropriate penalties are:
(1) Section 52(b) BCIIP Act (Newcastle TAFE Site - 19 October 2018) - $21,000;
(2) Section 500 FW Act (San Clemente Site - 19 October 2018) - $6,000; and
(3) Section 500 FW Act (KCT – 22 October 2018) - $6,000.
CFMMEU
189 As noted above, the ABCC contend that the penalties for each of the contraventions by the CFMMEU (recognising that there are five penalties for the six contraventions) are in the high range. It submitted that the following penalties were appropriate:
Contravention | Maximum penalty | High range (85%) | Upper High range (95%) |
s 355(b) FW Act (Mr Holl – KCT – 18 October 2018) | $63,000 | $53,550 | $59,850 |
s 355(b) FW Act (Mr Holl – KCT – 22 October 2018) | $63,000 | $53,550 | $59,850 |
s 500 FW Act (Mr Holl – KCT – 22 October 2018) | $63,000 | $53,550 | $59,850 |
s 500 FW Act (Mr Holl – San Clemente Site – 19 October 2018) | $63,000 | $53,550 | $59,850 |
s 52(b) BCIIP Act (Mr Holl Newcastle TAFE Site – 19 October 2018) | $210,000 | $178,500 | $199,500 |
s 52(b) BCIIP Act (Mr Hobson – Newcastle TAFE Site – 19 October 2018) | $210,000 | $178,500 | $199,500 |
Total | $672,000 | $571,200 | $638,400 |
190 The CFMMEU contended the penalties ought to be in the mid-range, contending the following is appropriate:
Contravention | Mid-range (50-60%) |
s 355(b) FW Act (Mr Holl – KCT – 18 October 2018) | $31,500 – $37,800 |
s 355(b) FW Act (Mr Holl – KCT – 22 October 2018) | $31,500 – $37,800 |
s 500 FW Act (Mr Holl – KCT – 22 October 2018) | $31,500 – $37,800 |
s 500 FW Act (Mr Holl – San Clemente Site – 19 October 2018) | $31,500 – $37,800 |
s 52(b) BCIIP Act (Mr Holl and Mr Hobson – Newcastle TAFE Site – 19 October 2018) | $105,000 – $126,000 |
191 The CFMMEU referred to the recent decision of Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 where White J imposed mid-range penalties for contraventions on the CFMMEU, rejecting the applicant's submission that the penalties on the CFMMEU should be higher stating at [214]:
I do not accept the submission of the ABCC that penalties in the “very high” range should be imposed. To do so would fail to give effect to the notion of proportionality which, as previously indicated, is inherent in the notion of an appropriate penalty for the purposes of s 546 and would mean that penalties are being imposed on the CFMMEU because of its poor history rather than for the instant contraventions.
192 I note that in the immediately preceding paragraph at [213], White J observed:
I accept the submission of the ABCC that penalties should be imposed on the CFMMEU on the basis that it is large, asset rich and well resourced; that it has a prior history of contraventions of ss 345, 497, 500 and 503 as well as other provisions in industrial legislation; that its history of prior contraventions bespeaks an indifference to (if not a defiance of) its obligations to comply with the law; that, while its contraventions considered by themselves are not of the worst kind, they are all the more serious because they reflect an attitude of continued defiance of the law; and that it has not sought to mitigate its contraventions by expressions of regret or by providing evidence of steps it has put in place to minimise the risk of future contraventions of a like kind.
193 So to here, it may be accepted that the CFMMEU is large, asset rich, well-resourced and that it has a prior history of contraventions of industrial relations legislation. As described by White J, the history of prior contraventions “bespeaks an indifference to (if not a defiance of) its obligations to comply with the law”. The CFMMEU has not adduced any evidence of having taken any corrective action such as training, instruction or direction such as to ensure compliance with the law, or at least limit or minimise the prospect of future contraventions. There is no expression of remorse or regret. Considerations of deterrence loom large.
194 Considering all the circumstances, in my view the CFMMEU’s contraventions are towards the high range. Unlike Mr Holl and Mr Hobson, the CFMMEU is not entitled to any leniency because of its past behaviour. That said, as noted above, the admissions are a matter of mitigation to be taken into account. As previously discussed, s 84 applies to the s 52(b) contraventions, and therefore although there are two contraventions, one penalty will be imposed. I am mindful of the need to ensure that the penalties are proportionate to the seriousness of the particular contraventions.
195 Having taken into account and weighed all the relevant factors, I find the appropriate penalties in respect to the CFMMEU’s contraventions to be:
(1) Section 355(b) FW Act (KCT – 18 October 2018, Mr Holl) – $50,000;
(2) Section 52(b) BCIIP Act (Newcastle TAFE Site – 19 October 2018, Mr Holl and Mr Hobson) - $260,000;
(3) Section 500 FW Act (San Clemente Site – 19 October 2018, Mr Holl) - $50,000;
(4) Section 355(b) FW Act (KCT – 22 October 2018, Mr Holl) – $50,000; and
(5) Section 500 FW Act (KCT – 22 October 2018, Mr Holl) - $50,000.
196 Mr Holl and Mr Hobson submit that the totality principle applies regardless of the Court’s finding as to a course of conduct. They submit that irrespective of that determination, the Court would find that each of Mr Holl’s contraventions is in the low to mid-range, and each of Mr Hobson’s are in the low range. The CFMMEU supports that approach given the similarities in the instances of conduct the subject of the contraventions.
197 The ABBC submitted that totality does not have a role in these contraventions. It submitted that the suggestion of Mr Holl and Mr Hobson that an adjustment for totality is required because they submit that the objective seriousness of the contraventions for Mr Holl is low to mid-range and for Mr Hobson to be low range, is incorrect. The assessment of objective seriousness takes place at the start of the process of determining the appropriate penalty having regard to the nature and circumstances of the contraventions. The totality principle involves a final check to ensure that the overall aggregate penalties are appropriate.
198 The totality principle is described in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 (Mill) at 62-63, in an oft cited passage, as follows:
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
199 This has been applied in the context of civil penalty proceedings: see for example the discussion in The Queensland Infrastructure Case at [118] ff. At [118], citing Environment Protection Authority v Barnes [2006] NSWCCA 246 at [49], the Court observed in a criminal context, where fines are involved, if the aggregation of multiple penalties is excessive, this may lead to moderation of the fine imposed in respect of each offence.
200 Where there are a number of contraventions, the totality principle is applied as a final check: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; (1997) 145 ALR 36 at 53, citing, inter alia, Mill. That is, the penalty fixer must as an initial step, impose the appropriate penalty for each contravention and then check that, overall, the penalty is appropriate and that the sum of the penalties imposed for several contraventions does not result in the total of the penalties exceeding what is proper having regard to the totality of the contravening conduct involved: Wooldridge at [26].
201 The submission by Mr Holl and Mr Hobson is unclear. If it is suggested that the principle applies to reduce the objective seriousness of the contraventions, that is incorrect. If it is suggested that the principle applies because of the objective seriousness of the conduct, it is unclear why that is so.
202 I have considered the totality principle, and whether there ought to be any adjustment to the penalties imposed. That is, whether any adjustment ought to be made to ensure that the final penalties are just and appropriate. In considering this issue, I recognise that there are two contraventions in respect to Mr Holl and the CFMMEU in respect to 22 October 2018. That said, as noted above, the contraventions are separate, and only overlap as to the underlying motive. I note also that in imposing a single penalty on the CFMMEU for the s 52(b) contraventions, by virtue of s 84, I have already taken into account what was appropriate for the two contraventions considered together.
203 Having reviewed the penalties, I do not regard the aggregate of the penalties imposed on each of the respondents as being disproportionate to their overall culpability.
Declarations
204 The respondents do not dispute the making of the declarations sought by the ABCC. Accordingly, I make the declarations in the terms sought.
I certify that the preceding two hundred and four (204) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. |
Associate:
NSD 2137 of 2019 | |
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION |
