Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NEXT DC P2 Project Case) [2022] FCA 37

ORDERS

THE COURT HAVING PREVIOUSLY MADE A DECLARATION, THE COURT FURTHER ORDERS THAT:

1.    The respondent pay a pecuniary penalty of $18,000 in respect of the declared contravention.

2.    The pecuniary penalty be paid to the Commonwealth of Australia within 28 days.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The Australian Building and Construction Commissioner seeks the imposition of a penalty against the Construction, Forestry, Maritime, Mining and Energy Union for admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) (FW Act).

2    The conduct the subject of the admitted contravention arose out of actions taken by Stephen Parker, a Union employee and officer, at a workplace site in Perth for an eight-storey data centre facility, known as the NEXT DC P2 Project, on 5 December 2019. The contravention is recorded by way of a declaration made by the Court with the consent of the parties on 2 July 2021 in these terms:

On 5 December 2019, the respondent (CFMMEU), by operation of ss 550 and 793 of the Fair Work Act 2009 (Cth) (FW Act), contravened s 500 of the FW Act by reason of its permit holder, Mr Stephen Barry Parker, whilst exercising his entry rights in accordance with Part 3-4 of the FW Act at the NEXT DC P2 Project located at 105 Lord Street in Perth, Western Australia (Site), acting in an improper manner by:

(a)    remaining on Site without an escort by a Multiplex representative; and

(b)    not complying with requests by Multiplex employees to move from where he was standing when the Multiplex employees were unloading doorframes from a truck.

3    An order was also made by consent for the Union at its cost to arrange for each of its permit holders based in Western Australia, and employed to work in its Construction and General Division, to attend training delivered by a third party with qualifications in industrial relations, canvassing the obligations of a permit holder under Part 3-4 of the FW Act.

Statutory context

4    Section 500 of the FW Act provides:

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.

5    Section 793 of the FW Act relevantly provides:

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)    by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

6    Section 500 of the FW Act is a civil remedy provision, and it was not in issue that the maximum penalty that may be imposed on the Union is $63,000.

The circumstances of the contravention

7    The parties filed two statements of agreed facts. The following facts are collected from those statements.

8    Multiplex Australasia Pty Ltd was the head contractor for the project at the Lord Street property (Site). Multiplex relevantly employed Mr Travis Hart (Senior Site Manager), who was responsible for day to day activities on the project and for meeting union officials exercising a right of entry at the Site; Mr Nicholas Margin (Site Supervisor) who reported to Mr Hart and was required to interact with clients and stakeholders related to the Site; and Mr Joel Mouritz (Site Supervisor) who was responsible for meeting union officials exercising a right of entry at the Site if Mr Hart was not available.

9    Mr Parker was an employee and officer of the Union. He was a permit holder within the meaning of s 12 of the FW Act, being the holder of an entry permit under s 512 of the FW Act. He was the holder of an authority pursuant to s 49J of the Industrial Relations Act 1979 (WA) and therefore an authorised representative for the purposes of relevantly s 49I and s 49J of that Act. In relation to the matters the subject of this case, he was acting within the scope of his actual and apparent authority as an officer and employee of the Union.

The Site and notice of requirements

10    As at 5 December 2019, there were relevantly three points of entry to the Site, being a turnstile entry and exit for workers who performed work at the Site using individually issued access swipe cards (Turnstile Entry); an entry door to the left of the Turnstile Entry that provided access to all other visitors to the Site (Visitor Entry); and a service gate to the right of the Turnstile Entry used for service and supply access to the Site and for occasional access by workers and visitors (Gate 1).

11    To the left of Gate 1 there was a sign that said 'Service and deliveries vehicles access only' and immediately to the right of Gate 1 there was a sign which stated 'No entry'.

12    A security hut was located about six to seven metres to the right upon entering the Site through the Visitor Entry.

13    There was a sign on the door of the security hut which relevantly stated 'Your signature in the visitor sign-in book indicates understanding and acceptance of the following … Always be chaperoned/escorted by a Multiplex Site Manager, Site Supervisor or HSE Advisor whilst on site'.

14    There was also a visitor register book in the security hut which contained the same statement.

15    On a number of occasions prior to 5 December 2019 Mr Parker had entered the Site. During those visits Mr Mouritz had explained the Site safety and right of entry protocols which included that Mr Parker must remain escorted by a Multiplex Site Manager, Site Supervisor or HSE Advisor whilst on the Site. An escort requirement can be important to minimise the risk of injury to any visitors and anyone working on the Site.

16    On about 20 occasions prior to 5 December 2019, Mr Parker had entered the Site, and was escorted around the Site by Multiplex employees, including by Mr Hart and Mr Mouritz.

17    Multiplex had statutory duties relevantly pursuant to s 19(1) and s 22 of the Occupational Health and Safety Act 1984 (WA) (OHS Act) to provide and maintain a working environment in which its employees were not exposed to hazards, and to take such measures as are practicable such that any persons who are at the workplace including those persons who are not employees of Multiplex are not exposed to hazards.

Events of 5 December 2019

18    At about 11.30 am on 5 December 2019 a critical crane lift had commenced on Site, involving a suspended platform with equipment on it weighing about 9 tonnes that was being loaded into the building. This was considered a high risk activity because it involved a suspended load hanging off the building, and required advanced rigging of the crane. The crane lift was conducted outside the day-to-day operations of the project, and required a specialist lift study and specialist lift riggers from another contractor.

19    At about 11.50 am the temperature for the Perth Central Business District had reached 37.5 degrees. Mr Hart directed 70 sub-contractors to cease all work on the basis of inclement weather and particularly on the basis that cl 33.9 of the Brookfield Multiplex Australasia Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020 (Agreement) had been triggered. Clause 33.9 is in these terms:

33.9    Hot Weather Guidelines

(a)    Under the Agreement, temperature of or above 37.5°C will be defined as constituting 'inclement weather' for work in the Perth Metropolitan area. This definition will be subject to review in other regions.

(b)    When it is expected that the temperature will be 37.5°C or more, or when the temperature approaches 37.5°C, the parties on site will confer with the on-site safety committee (however described) and/or on site Employee Representatives regarding the performance of work.

(c)    As part of a process leading to improvements, it is recognised that hot weather procedures including relocation, must be part of a formal work health and safety procedure developed, adopted and managed on a project basis having regard to the different conditions that may prevail on projects in various locations.

20    At about 12.00 pm Mr Parker attended the Site at Gate 1. When he arrived, a security guard engaged by Multiplex, Mr Ifeanyi Mekowulu, spoke to Mr Parker at Gate 1. During that conversation Mr Mekowulu told Mr Parker a number of times that he should enter the Site through the Visitor Entry, and Mr Parker told Mr Mekowulu a number of times that Mr Mekowulu should let him into the Site because he had a right of entry.

21    Immediately after this conversation, Mr Hart approached Gate 1 and told Mr Parker that he should enter through the Visitor Entry.

22    Mr Hart (inside the Site) and Mr Parker (outside the Site) then walked separately to the Visitor Entry. Upon arriving at the Visitor Entry, Mr Hart directed a security guard engaged by Multiplex, Mr Raymond Tipuna, to unlock the Visitor Entry.

23    Mr Hart's intention at that time was to walk through the Visitor Entry out of the Site to talk to Mr Parker and confirm the reason why Mr Parker wanted to enter the Site and, if satisfied that the reason for entering was lawful, to follow the appropriate protocols including checking his Federal and State permits, ensuring that he signed the visitor register and escorting him onto the Site.

24    After Mr Tipuna unlocked the Visitor Entry, and before Mr Hart could walk through the Visitor Entry, Mr Parker walked through the Visitor Entry to the Site. Mr Parker showed a tag around his neck to Mr Hart and Mr Tipuna and said 'I have right of entry', after which Mr Parker and Mr Hart had the following conversation:

Hart:    You are not permitted to enter, you just can't enter the site like that. Come back out of the site and we will discuss why you are here.

Parker:    I am going in under 49I.

Hart:    Well you are not allowed on the site without adhering to our safety protocols, you will have to leave.

Parker:    I'm not leaving, I'm here under 49I.

Hart:    We are just commencing our safety walk to check the site is safe with regard to the inclement weather. You are hindering our safety protocol. You have to leave.

Parker:    I'm not leaving, I'm here under 49I.

25    Following this conversation Mr Hart left to attend the critical crane lift he was supervising and Mr Parker remained with Mr Tipuna. Mr Hart telephoned Mr Margin (who at that time was at the Multiplex office across the road from the Site) and asked him to attend the Site to watch Mr Parker. Mr Margin walked over the road to enter the Site.

26    After Mr Hart left, Mr Parker walked past the security hut and then to about 30 metres inside the Site unescorted. After about three minutes on the Site, Mr Parker returned to the Security Hurt and signed the visitor register. At about 12.10 pm, Mr Parker returned to the location on the Site where he had previously been standing.

27    A short time later, Mr Margin entered the Site and stood about 10 metres from Mr Parker, who was unescorted. Mr Parker walked over to Mr Margin and had the following conversation:

Parker:    Are you my escort, are you going to walk, to go around Site?

Margin:    We are not going through the Site, Travs told me to watch you in the logistics yard. We are not walking through the Site.

28    Around this time, Mr Mouritz walked nearby. Mr Mouritz and Mr Parker had, from a distance, the following conversation:

Parker:    Are you going to escort me?

Mouritz:    No, I'm busy with other tasks.

29    At about 12.30 pm, Mr Mouritz and Mr Margin were unloading doorframes from a truck which had just arrived on Site. Mr Mouritz was unloading the doorframes because the workers who would ordinarily unload the frames had left the Site due to the inclement weather. Mr Margin had decided to assist Mr Mouritz.

30    While they were doing this, Mr Parker stood sufficiently close to Mr Margin and Mr Mouritz so that his presence was intrusive. Mr Parker said to Mr Margin and Mr Mouritz: 'it's not your job to unload frames'; 'you shouldn't be doing this type of work as site supervisors'; 'you guys are going to hurt yourselves'; and 'you do not have any gloves on, I don't want you to cut yourselves'.

31    While unloading the doorframes, Mr Margin and Mr Mouritz asked Mr Parker on numerous occasions to move from where he was standing (Unloading Request). Despite Mr Parker's presence, Mr Margin and Mr Mouritz chose to carry on unloading the door frames. Mr Parker was standing in a position that meant that rather than lifting the doorframes straight off a vehicle and down onto the ground, Mr Mouritz and Mr Margin had to move around Mr Parker and carry the door frames for a longer distance.

32    Mr Parker did not comply with the Unloading Request for approximately five minutes, during which time Mr Parker's presence continued to be intrusive to Mr Margin and Mr Mouritz.

33    Shortly after this, at about 12.35 pm, Mr Hart approached the truck and told Mr Parker to move. Mr Parker and Mr Hart then walked up a scaffold stairwell to the first floor of the Site.

34    At about 12.37 pm, Mr Parker left the Site.

35    At all material times after Mr Hart left Mr Parker ([26] above), Mr Parker was without a Multiplex escort and remained without an escort. Multiplex did not provide an escort to accompany Mr Parker as Multiplex was shutting down the Site due to inclement weather and was supervising a critical crane lift. Mr Parker was not at any time in the proximity of the part of the Site where the critical crane lift took place.

36    By reason of failing to have an escort from the period of about 12.05 pm to about 12.35 pm on 5 December 2019, Mr Parker remained on Site without an escort by a Multiplex representative (Escort Misconduct). By reason of not moving from where he was standing while Mr Margin and Mr Mouritz were unloading doorframes from the truck, Mr Parker did not comply with the Unloading Request (Unloading Misconduct).

37    At all material times Mr Parker was a permit holder exercising or seeking to exercise a State or Territory OHS right by attending the Site, that right being to investigate a suspected contravention of the OHS Act that relates to an employee (s 49I of the Industrial Relations Act).

Liability accepted

38    The Union accepts that by engaging in the Escort Misconduct and the Unloading Misconduct, Mr Parker acted in an improper manner whilst exercising his rights for the purpose of Part 3-4 of the FW Act.

39    Mr Parker had actual or apparent authority to act on behalf of, and was acting on behalf of, the Union. The Union is therefore taken to have engaged in the Escort Misconduct and Unloading Misconduct. The Union admits that it contravened s 500 of the FW Act by engaging in that conduct.

40    The parties accept that the Union is liable for one contravention of s 500 of the FW Act by engaging in the Escort Misconduct and the Unloading Misconduct.

Compliance with order to undertake training from third party provider

41    On 20 July 2021 the Union engaged a third party provider with qualifications in industrial relations to deliver training canvassing the obligations of a permit holder under Part 3-4 of the FW Act. The training was recognised by the Fair Work Commission for the purpose of s 513(1)(a) of the FW Act.

42    In the period 7 to 9 September 2021, each of the Union's permit holders based in Western Australia and employed to work in its Construction and General Division, including Mr Parker, undertook and completed such training.

43    The Union has therefore complied with the relevant order.

The principles

General principles for assessing penalties

44    Section 546 of the FW Act provides for the imposition of pecuniary penalties for contraventions of the FW Act.

45    The task of the court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 at [91] (Buchanan J).

46    Circumstances that might be relevant to the exercise of the court's discretion in assessing what penalty is appropriate are well known and set out elsewhere: Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 at [11]-[23] (Tracey J); and 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] and the cases cited therein.

47    Those circumstances can be categorised broadly as relating to the objective nature and seriousness of the offending conduct, and the particular circumstances of the contravener: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Queensland Infrastructure Case) [2017] FCAFC 113; (2017) 254 FCR 68 at [102]. Such factors ought not to be treated as a rigid or exhaustive catalogue and do not substitute for identifying and balancing all relevant considerations in the particular case before the court: Australian Ophthalmic Supplies at [91].

48    The principles that have developed through the authorities are not rules, but are tools to assist the court in arriving at an appropriate penalty: Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 at [226] (Allsop CJ, Middleton and Robertson JJ). However, the court's power has no retributive or rehabilitative aspect: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152 (French J). This and other distinctions between civil and criminal penalties mean it is appropriate for the court to receive submissions from the Commissioner (and the Union) about what penalty may be appropriate: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [55]-[58].

49    The topics addressed below are those that the parties identified as of particular relevance in this case. In the end, however, it is necessary to have general regard to all of the circumstances in order to reach a penalty which balances and synthesises many conflicting features.

Considerations relevant to s 500

50    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468 McKerracher J summarised particular principles relevant to rights of entry, which I respectfully adopt:

[21]    When considering the relative seriousness of the contravening conduct, it is important to recognise that, in granting rights of entry under the FW Act, it is evident that the legislature has sought to balance the interests of occupiers of premises, employers, unions and employees: Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 (at [14]-[15]). On the one hand, right of entry is an important tool for unions to investigate suspected breaches of safety requirements and industrial laws, and as an aid to effective communication between union officials and employees. Equally, employers have an interest in conducting their business activities without disruption or inconvenience: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 (at [32]).

[22]    Section 500 is part of this scheme of balancing of interests, that ensures proper standards of conduct by permit holders when exercising a right of entry: Adelaide Airport Case (at [36]). The requirement of civility in exercising a right of entry is also reflected in s 512 and s 513(1)(g) of the FW Act; in issuing a permit, the Fair Work Commission must be satisfied that the union official is a fit and proper person to be a permit holder. In Re CFMEU (permit application for Joe McDonald) (decision of the Australian Industrial Relations Commission, 25 July 2003, print reference (PR935310)), Ross VP (as his Honour then was) approved of the observations of Munro J in Vivienne Daniels v Joe Patti and another (decision of the Australian Industrial Relations Commission, 31 March 2000, print reference (Print S4571) at [34]) regarding an equivalent predecessor provision in s 285A(3) of the Workplace Relations Act 1996 (Cth):

Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.

[23]    Acting in an 'improper manner' means acting contrary to the requirements of the right of entry provisions in Pt 3-4, and is conduct 'which falls below that standard which can reasonably be expected of those who occupy positions of responsibility': Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668; (2015) 147 ALD 373 (at [97]), cited in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15; (2018) 258 FCR 158 (at [40]). The relevant conduct need not be deliberate or intentional for liability to arise (as distinct from 'intentionally hinder or obstruct'), and where the conduct is inadvertent or unintentional, these ameliorative factors will be relevant in determining the appropriate penalty: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88; (2018) 262 FCR 473 per Tracey J, Allsop CJ agreeing (at [122]).

Prior contraventions and Pattinson v Australian Building and Construction Commissioner

51    The question of prior contraventions is alive in this case. The appropriate approach was confirmed by the five-member Full Court in Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580. The Full Court held that prior contraventions are relevant only to the extent that they may inform an assessment of the seriousness of the instant contravention. In making this assessment, evidence of prior contraventions may be sufficient to increase the seriousness of the instant contravention by demonstrating 'wilful recidivism' or an attitude of disobedience to the law and thus justify a higher penalty than might otherwise be ordered.

52    However, and critically, the Full Court in Pattinson enjoined against any additional consideration of prior contraventions divorced from an assessment of the seriousness of the case in question (Allsop CJ, White and Wigney JJ at [180]-[181], [191]-[194]). It observed that proportionality is not a free-standing principle, but anchored by the notion that the penalty be appropriately set to deter contraventions of the kind in fact committed: at [100], [104]. The apparent attitude of the contravener to compliance with the relevant law of Parliament is therefore relevant.

53    It is not necessary to set out further passages from Pattinson: they are usefully collected by McKerracher J in The DoubleTree Hilton Case at [24]-[25]. The following summary by Rangiah J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Toowoomba Bypass Case) [2021] FCA 1128 is also instructive:

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

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

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

54    The High Court has heard an appeal from Pattinson, but pending the outcome of the appeal the Full Court decision remains binding on this Court.

Factors addressed by the parties in this case

55    In summary, the Commissioner accepts that the contravention by Mr Parker was not of itself particularly serious, but contends that as the relevant respondent is the Union, its recidivist behaviour informs the prism through which the penalty is to be assessed, and in that context its behaviour should be seen as serious. Accordingly, it is contended, the penalty should be sufficiently high to have the required deterrent impact and so should be in the high range.

56    The Union contends that the appropriate penalty is one which is proportionate to the low-grade contravening conduct and builds in a meaningful discount for its cooperation and corrective action, and that the penalty should be in the range of 15% to 20% of the maximum, that is, around $11,000.

57    Leaving aside the quantum of the penalty, the real issues between the parties distil to these:

(a)    the characterisation of the conduct;

(a)    having regard to Pattinson, how should the Court treat the Union's past contravening conduct; and

(b)    whether by the Union's conduct it has expressed contrition.

Characterisation

58    Neither the Commissioner nor the Union submit that the contravention by itself is at the higher end of the level of seriousness.

59    During the hearing counsel for the Union described the events as follows:

It was a thirty-seven and a half degree day. There was a confluence of things happened. Workers were being sent home. There was a crane lift happening. The site was being shut down. Mr Parker arrived on site. There was confusion when he entered. He was left to his own devices. A Multiplex representative came along and was with him, and whilst there might have been some argument about that, whether or not that did or didn't amount to an escort, had the matter proceeded to hearing, the CFMEU has acknowledged that he was not being escorted in the formal sense, and thus acted improperly.

And then there was the spontaneous reaction to the Multiplex representatives unloading the truck as that unfolded before Mr Parker. So it's very easy to see that this is just something that happened on the day. One of those things that happens. It's very low grade. Short duration. No evidence of any harm.

60    The Commissioner took issue with the way the Union characterised some of the conduct. For example, the Commissioner resisted any suggestion that Mr Hart did not properly supervise Mr Parker's entrance to the Site or abandoned any plan to check his credentials. I accept that the agreed facts do not rise to the level of explaining Mr Parker's conduct as the product of confusion or a lack of supervision on the part of Mr Hart. Mr Parker made his own choices. I also accept the Commissioner's submission that the agreed facts indicate that Mr Parker was twice in places on the Site that he should not have been without an escort: first, when he walked onto the Site and had to return to sign the visitors' register; and second, when he then returned further onto the Site having signed it. I accept the Commissioner's submission that the Union's portrayal in its written submissions of Mr Margin and Mr Morris as being 'unperturbed' by Mr Parker's presence as they were unloading the door frames colours the substance of the agreed facts. There is nothing in the agreed facts that supports such a finding as to the state of mind of Mr Margin and Mr Morris. Mr Parker's presence is described as intrusive. Nor is there anything that supports the suggestion in the Union's written submissions that Mr Margin and Mr Morris were ignorant as to the safety obligations that were raised with them by Mr Parker.

61    The Commissioner accepts that Mr Parker did not deliberately set out to breach the FW Act. However, the Commissioner asserted that the physical acts that underpinned the conduct - being on the site unescorted and standing where he should not have been - were deliberate.

62    The Union submitted that the conduct of Mr Parker was not deliberate and says that the statement of agreed facts is premised on 'a neutral state of mind'. It submitted that the Court may not make inferences on such topics which are not founded on the admissions of the parties: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate at [61], but in any event the inference cannot be justifiably made. These submissions should be accepted: see also The DoubleTree Hilton Case at [56].

63    I accept that based on the statement of agreed facts there is nothing to suggest Mr Parker's conduct was planned or premeditated. It arose in response to circumstances on the day. There is no evidence to suggest that he anticipated that there would be no escort readily available or that it would be necessary for Mr Margin and Mr Morris to unload doorframes, having regard to the impact of the inclement weather. Mr Parker understood that he required an escort on Site, but regardless he moved around the Site unescorted, albeit for a relatively limited period. His conduct when standing near Mr Margin and Mr Morris and commenting on the task they were carrying out might properly be described as officious, but was not deliberate in the sense of premeditated. He may have held legitimate concerns for the safety of Mr Margin and Mr Morris but his failure to respond to the request to move from where he was standing in the area was improper, as the Union accepts.

64    I also take into account that Mr Parker had entered the Site without issue on many occasions previously. Furthermore, although he initially resisted a request from the security guard, he moved to the Visitor Gate from Gate 1 when requested to do so by Mr Hart.

65    The conduct of Mr Parker on 5 December 2019 when explained and viewed in context does not manifest any attitude of indifference or deliberate non-compliance with right of entry requirements. I consider the conduct should be characterised at the lower or less serious end of the spectrum.

Issues relating to Pattinson

66    The Commissioner submitted that the Union is a recidivist offender. Attached to the written submissions was a Schedule that set out some 179 cases of prior penalties and declarations under industrial laws that have involved the Union or its representatives. Counsel for the Commissioner said that the purpose of the Schedule was to evidence that the Union 'has contravened legislation hundreds of times, is a wilful contravener [and] expresses a wilful disobedience to the law', which it was said ought to bear on the seriousness of the contravening conduct in this case and the penalty. The Commissioner accepted, however, that the penalty needs to be proportionate to the contravention.

67    The Commissioner drew attention to 39 proceedings in the Schedule which involved contraventions of s 500 of the FW Act. Thirty-one of those proceedings involved conduct prior to the contravening conduct in this case: items 20, 21, 25, 27, 30, 35, 36, 38, 39, 40, 41, 42, 43, 46, 49, 53, 57, 59, 67, 72, 73, 74, 76, 81, 82, 87, 89, 93, 118, 121 and 122 in the Schedule.

68    Further, at least one authority which involved a breach of s 500 has been published subsequent to the hearing in this matter, being The DoubleTree Hilton Case. In communications with Chambers the parties agreed that the case was relevant but that it did not alter the submissions made during the course of the hearing. They noted it was another occasion of improper conduct by Mr Parker, occurring on 15 February 2019, and so prior to the conduct the subject of the present case. The conduct of Mr Parker in the present case was taken into account by McKerracher J when imposing the penalty in The DoubleTree Hilton Case as subsequent conduct: at [69]-[70]. This course was in accordance with Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 at [55]-[56].

69    However, despite identifying the 39 cases in the Schedule, the Commissioner's submissions were put at a general level and there was no analysis of why a connection should be drawn between any particular case and the present case. Albeit that those cases have the common element of a s 500 contravention, the objective seriousness of the offending may be diverse and provide little guidance, either as to the appropriate penalty or more specifically as to whether it should be viewed as indicative of recidivist behaviour.

70    This absence of analysis was a matter to which counsel for the Union referred. The Union drew particular attention to the observation of the plurality in Pattinson that the penalty in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268 'betrayed a complete mischaracterisation of the contravention and betrayed the influence and utilisation of past contravening conduct when such had no proper connection with such contravention as might have been found': at [184].

71    The Union submitted that none of the prior contraventions of s 500 (all of which turn on their own facts and circumstances, especially those involving impropriety) bear any resemblance to Mr Parker's 'low grade improper conduct and the unique circumstances in which it took place'. I note that a brief review of the Commissioner's summaries of the 39 cases in the Schedule reveals examples of contraventions that involve derisory language, abusive behaviour, ignoring requests to move away from moving equipment, making threats and other aggressive conduct. Objectively, such conduct is far removed from that of Mr Parker in this case.

72    The Union noted that no senior Union management were involved in Mr Parker's conduct, and its liability is wholly derivative. It was submitted that anything other than a low range penalty would serve to re-penalise the Union for its past conduct.

73    The Union drew attention to three cases that it said supported its submission. It apparently relied upon the same three cases in The DoubleTree Hilton Case, and I respectfully adopt McKerracher J's summary of those cases:

[65]    The earliest was in fact Upton, and related to conduct that occurred some nine years ago. On 8 October 2012, CFMMEU (at that time the CFMEU) official Mr Bradley Upton attended Bechtel's Wheatstone Gas project near Onslow to hold discussions under the FW Act. Whilst on site Mr Upton behaved in an improper manner by abusing a Bechtel employee using obscene and racist remarks. On 13 February 2013, Mr Upton again attended the Wheatstone project to hold discussions with employees and behaved in an improper manner by failing to comply with a direction not to hold discussions in the 'wet mess' area of the project. The CFMMEU was found liable for two contraventions of s 500 and penalties of $15,000 and $5,000 were imposed which were respectively equivalent to 45% and 10% of the maximum penalty, the value of a penalty unit having increased in the time between the first and second contravention.

[66]    The next was Australian Building and Construction Commissioner v Harris [2017] FCA 733, and related to conduct that occurred some six and a half years ago. On 25 May 2015, CFMMEU organiser Mr Tawa Harris attended the Joondalup carpark construction site to hold discussions with employees on the site. Mr Harris did not provide an entry notice and despite being directed not to enter, and to leave the site, refused to leave the site for 45 minutes when police were called. Whilst a penalty of $2,000 was imposed on Mr Harris, the proceedings against the CFMMEU were dismissed.

[67]    Shortly after that was Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897, which related to conduct that occurred some six years ago, and some three years prior to the instant contravention. On 3 December 2015, Mr Upton entered the Gorgon Project in the exercise of entry rights. Mr Upton addressed a meeting of about 50 to 60 employees of various contractors. Mr Upton attended the meeting displeased with what he understood to be as many as 90 members of the CFMMEU resigning from the union. Mr Upton spoke in an aggressive and expletive-laden manner. The CFMMEU was found liable for one contravention of s 348, one of s 346(a), and one of s 500, and a penalty of $43,200 imposed.

74    I should add that The DoubleTree Hilton Case involved Mr Parker failing to comply with a direction by walking off in the opposite direction on site than that requested by the safety supervisor, but it also involved raised voices ([9] of reasons) and derisory or disrespectful language capable of being perceived as racist or at least as insensitive and inconsiderate, although there was no deliberate intent to cause offence ([11], [49]-[50]). The misconduct in that case was described by McKerracher J as relatively minor.

75    I agree with McKerracher J that the conduct in the three cases referred to by the Union and cited by McKerracher J was objectively more serious than the conduct the subject of The DoubleTree Hilton Case. I would also characterise Mr Parker's conduct in the The DoubleTree Hilton Case as more serious than in the present case; in this case there was no derisory language or threat by way of raised voice or otherwise. However, the difference is somewhat marginal and it is not appropriate to attempt to further calibrate such examples of conduct. There must always be consideration of the broader context and circumstances.

76    Even so, as I have indicated, I do not consider the conduct of Mr Parker manifested any attitude of indifference or deliberate non-compliance with right of entry requirements. It does not render the contravention by the Union significantly more serious. As was the position in The DoubleTree Hilton Case, I do not consider this is a case where heightened deterrence is required on the basis of the Union's history of past contraventions. The contravention is not to be dismissed lightly: safety on a worksite is vital, and the climate of Perth is such that high temperatures affect worksites not infrequently. However, the contravention by Mr Parker involved a relatively minor transgression in the scheme of such things.

Contrition

77    From the time of the issue of the originating application until the declaration of contravention was made, the claim brought by the Commissioner significantly narrowed. This is apparent from the discontinuance of proceedings against Mr Parker personally but also from the more limited nature of the claims that were pursued. It is also apparent that the Union cooperated in the resolution of these proceedings; there was mutual reliance on the statement of agreed facts and willingness on the part of the Union to make admissions as to the contravention. Such cooperation significantly assists in the efficient use of resources, including the resources of the court. The Commissioner accepts that such cooperation is mitigatory. The Commissioner also accepts that the Union has taken corrective action in arranging at its costs for its permit holders to attend training.

78    However, the Commissioner did not accept the Union's characterisation of contrition by reference to the admissions and corrective action. The Commissioner submitted that contrition may be demonstrated by an apology or a statement of regret, but is not to be found in the conduct by the Union in this case or otherwise inferred. I do not consider that contrition might only be expressed in the manner the Commissioner suggests.

79    There are circumstances where an apology is clearly appropriate, and failure to provide one or otherwise indicate contrition is significant. In Australian Federation of Air Pilots v HNZ Australia Pty Ltd [2015] FCA 755 Mortimer J said the following as to the significance or otherwise of an apology:

[43]    I do not accept the applicant's invitation to place weight on the absence of contrition, or an apology from HNZ. I prefer the submission of HNZ that these aspects are not particularly appropriate to the circumstances of this contravention. No doubt there will be cases where the refusal, or absence, of an apology, would be significant. That might be the case especially where there has been unlawful conduct targeted at a particular employee, or there are circumstances of embarrassment, humiliation, or worse. Further, there is an aspect of contrition in the response of HNZ by admitting the contravention and submitting to a penalty. Agreement was reached between the parties relatively early in the course of the proceedings: some six months before trial and some four months after the proceeding was issued.

80    It is fair to say that generally speaking cooperation does not necessarily evidence remorse. As explained in The Queensland Infrastructure Case (Dowsett, Greenwood and Wigney JJ):

[163]    About the only thing that could be said in favour of the CFMEU, other than that the conduct was related to genuine concerns about sham contracting, is that it cooperated with the Commissioner in relation to these proceedings by admitting the contraventions and reaching agreement in relation to the facts. Importantly, the admissions and agreed facts were also not withdrawn after the initial agreement in relation to the penalty amounts was withdrawn by the Commissioner. There is no doubt that the CFMEU should receive credit for this cooperation. From a public policy perspective, it is important to encourage such cooperation by reflecting it in the penalties imposed. It also shows willingness on the part of the CFMEU to accept responsibility for its 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.

[164]    It is, however, doubtful in all the circumstances that the CFMEU's cooperation with the regulator could really be said to demonstrate contrition or remorse. In some respects the cooperation reflects nothing more than an acceptance of the inevitable. The CFMEU did not adduce any evidence of contrition or remorse. Indeed, there was not even an expression of contrition or remorse in its submissions. There was no evidence from which it could be inferred that the CFMEU intended to change its ways. There was certainly no suggestion, let alone evidence, to the effect that the CFMEU intended to set up any systems, processes, procedures or education to ensure that its officers did not encourage unlawful industrial action in the future.

81    Having regard to those authorities, I consider it appropriate to discount the penalty that might otherwise have been imposed by taking into account both cooperation and an element of contrition. However described, the fact that the Union consented to an order that it implement the third party training program (at its cost) indicates a willingness to 'change its ways'. It was willing to invest in the education of its permit holders. Mr Parker is an experienced permit holder. The fact that the Union agreed that he should participate in further training despite his experience also indicates Union support for improved compliance with entry requirements. I consider such conduct falls within a range of conduct that might indicate contrition. It is not otherwise the type of case where the absence of an apology to any particular person is significant.

Other factors

82    This Court has previously observed that the Union is large, asset-rich, and well-resourced: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Webb Dock Case) [2017] FCA 62 at [65]; and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 at [25].

83    Any penalty must be of sufficient quantum to operate as a deterrent and not an amount that might be seen as no more than a cost of doing business: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 at [102]; and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2017] FCA 1555 at [52].

84    The Union accepts that its size is relevant to the determination of penalty.

85    None of the other indicia that are sometimes referred to for the purpose of penalty hearings (such as involvement of senior management) were considered relevant to the disposition of this case.

Consideration

86    Deterrence is the principal object of imposing civil penalties pursuant to s 546 of the FW Act: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate at [55]; Pattinson at [191].

87    However, as I have indicated, the relatively minor nature of the contravention in the present case does not, in my view, attract a need for heightened deterrence by reference to a history of more significant contraventions on the part of the Union which do not relevantly inform this matter. In circumstances which do not suggest a demonstrated and deliberate willingness to flout the law, I do not consider the contravention should be considered more serious or punished more heavily because it involved a recidivist contravener. That would not be a proportionate response to all of the circumstances of this case. There remains, however, the need for deterrence, including specific deterrence that takes into account the healthy financial position of the Union.

88    I should add that had Mr Parker's behaviour occurred after he had participated in third party training canvassing his obligations as a permit holder, it is highly likely a court would have imposed a higher penalty, as a greater need for specific and general deterrence would have been revealed - but that is not this case.

89    Therefore, I do not accept the Commissioner's submission that the penalty imposed should be in the high range. Rather, I consider that having regard to the nature of the offending, the fact that the Union's liability is wholly derivative, the degree of cooperation and the element of contrition evidenced by the training commitment, the appropriate response which recognises the object of deterrence is a penalty of $18,000.

90    There will be orders accordingly.

Associate:

Dated:    31 January 2022