Federal Court of Australia

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Richard Crookes Constructions Pty Ltd [2022] FCA 1142

ORDERS

THE COURT DECLARES THAT:

1.    The respondent contravened s 502(1) of the Fair Work Act 2009 (Cth) on 12 August 2020 by its employees or agents, Mr Chris Diversi and Mr Peter Yamin intentionally hindering and/or obstructing Mr Anthony Stegic and Mr Lawrence Duff from exercising rights in accordance with Part 3-4 of the Fair Work Act (first contravention).

2.    The respondent contravened s 501 of the Fair Work Act on 13 August 2020 by its employees or agents Mr Peter Yamin and Mr Chris Diversi unduly delaying Mr Anthony Stegic, who was a permit holder entitled to enter the premises at 79 Macquarie Street, Sydney (Site), entry to the Site (second contravention).

3.    The respondent contravened s 501 of the Fair Work Act on 13 August 2020 by its employee or agent Mr Peter Yamin refusing Mr Lawrence Duff, who was a permit holder entitled to enter the Site, entry to the Site (third contravention).

THE COURT ORDERS THAT:

1.    The respondent pay a pecuniary penalty of $20,000 in respect of the first contravention.

2.    The respondent pay a pecuniary penalty of $35,000 in respect of the second contravention.

3.    The respondent pay a pecuniary penalty of $45,000 in respect of the third contravention.

4.    The pecuniary penalties in Orders 1 to 3 be paid to the applicant.

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

REASONS FOR JUDGMENT

GOODMAN J

INTRODUCTION

1    As at August 2020, the respondent was the occupier of the premises located at 79 Macquarie Street, Sydney (Site). It was also the principal contractor for the construction on the Site of the Opera Residences, involving the construction of 104 apartments over 19 levels, together with retail premises, a multi-level car park and other improvements.

2    On 12 and 13 August 2020, Mr Lawrence Duff and Mr Anthony Stegic, officials of the applicant Union, sought to enter the Site. Mr Duff and Mr Stegic each held entry permits issued pursuant to s 512 of the Fair Work Act 2009 (Cth) (FW Act) and s 134 of the Work Health and Safety Act 2011 (NSW) (WHS Act). However, employees of the respondent hindered, obstructed, delayed or refused such attempts to enter the Site. The respondent has admitted to three contraventions of the FW Act, namely:

(1)    on 12 August 2020, it contravened s 502(1) of the FW Act by intentionally hindering or obstructing Mr Stegic and Mr Duff in the exercise of their rights, as permit holders, under Part 3-4 of the FW Act;

(2)    on 13 August 2020, it contravened s 501 of the FW Act by unduly delaying Mr Stegic’s entry to the Site; and

(3)    on 13 August 2020, it contravened s 501 of the FW Act by refusing Mr Duff entry to the Site.

3    The purpose of this judgment is to determine the appropriate relief with respect to those contraventions.

LEGAL FRAMEWORK

WHS Act provisions

4    Sections 117, 118 and 119 of the WHS Act provided:

117    Entry to inquire into suspected contraventions

(1)    A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

(2)    The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

118    Rights that may be exercised while at workplace

(1)    While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act—

(a)    inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention,

(b)    consult with the relevant workers in relation to the suspected contravention,

(c)    consult with the relevant person conducting a business or undertaking about the suspected contravention,

(d)    require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that—

(i)    is kept at the workplace, or

(ii)    is accessible from a computer that is kept at the workplace,

(e)    warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.

(2)    However, the relevant person conducting the business or undertaking is not required under subsection (1) (d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

(3)    A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) (d).

WHS civil penalty provision.

Maximum penalty—

(a)    in the case of an individual—115 penalty units, or

(b)    in the case of a body corporate—575 penalty units.

(4)    Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.

119    Notice of entry

(1)    A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to—

(a)    the relevant person conducting a business or undertaking, and

(b)    the person with management or control of the workplace.

(2)    Subsection (1) does not apply if to give the notice would—

(a)    defeat the purpose of the entry to the workplace, or

(b)    unreasonably delay the WHS entry permit holder in an urgent case.

(3)    Subsection (1) does not apply to an entry to a workplace under this Division to inspect or make copies of documents referred to in section 120.

FW Act provisions

5    Sections 501 and 502 of the FW Act provided:

501    Person must not refuse or delay entry

A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.

502    Person must not hinder or obstruct permit holder

(1)    A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.

(2)    To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.

(3)    Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.

6    Sections 501 and 502(1) are identified in s 539 of the FW Act as civil remedy provisions and for each section the maximum number of penalty units referred to in column 4 of the table in s 539(2) is 60. At the time of the contraventions, a penalty unit was $222: s 12 of the FW Act, read with s 4AA of the Crimes Act 1914 (Cth) and the Notice of Indexation of the Penalty Unit Amount issued by the Commonwealth Attorney-General on 14 May 2020.

7    Section 546 of the FW Act provides for the imposition of pecuniary penalties for contraventions of civil remedy provisions. It provides in so far as is presently relevant:

546    Pecuniary penalty orders

(1)    The Federal Court … may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Determining amount of pecuniary penalty

(2)    The pecuniary penalty must not be more than:

…

(b)    if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

Payment of penalty

(3)    The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

…

(b)    a particular organisation; or

…

8    The effect of s 546(2)(b), when read with s 539(2), s 4AA of the Crimes Act and the Notice of Indexation, is that the maximum pecuniary penalty for each contravention by the respondent is $66,600 (5 x 60 x 222).

FACTUAL FINDINGS

9    The respondent has admitted the allegations in the Union’s Amended Statement of Claim. The only affidavit evidence is an unchallenged affidavit of Mr Tony Grippi, General Manager – Operations and Construction Manager, of the respondent. The parties also tendered an agreed statement of facts concerning five admitted contraventions of ss 501 or 502, which were the subject of a separate proceeding before Wigney J and in which his Honour recently delivered judgment: Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992 (26 August 2022). The salient facts, taken principally from the pleadings and Mr Grippi’s affidavit, are set out below.

Events prior to the contraventions

10    Since 2019, the respondent has conducted Right of Entry Training (ROE Training) from time to time, including February and July 2020 and September and December 2021.

11    On 26 May 2020, the respondent contravened s 501 of the FW Act. That contravention, and three other contraventions of that section, on 27 and 28 July 2020 and 12 November 2020, as well as a contravention of s 502(1) of the FW Act on 11 November 2020, are the subject of the decision in Richard Crookes.

The respondent and its employees

12    As at 12 and 13 August 2020, the respondent was engaged in the performance of “construction work” at the Site for the purposes of reg 289 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation); engaged in the performance of “high risk construction work” at the Site for the purposes of reg 291 of the WHS Regulation; and was the principal contractor for the Site for the purposes of reg 293 of the WHS Regulation.

13    As the occupier of the Site, the respondent was capable of exercising control by its employees and agents over entry to the Site, including entry by officials of trade unions issued entry permits.

14    The respondent was also a “person conducting a business or undertaking” at the Site for the purposes of s 5 of the WHS Act and a person with management or control of the Site for the purposes of s 20 of the WHS Act.

15    As a result, the respondent had obligations under the WHS Act including to ensure, so far as reasonably practicable: the health and safety of workers engaged or caused to be engaged by it while those workers were at work in the respondent’s business or undertaking at the Site (s 19(1)); the provision and maintenance of a work environment without risks to health and safety and the provision and maintenance of safe systems of work (s 19(3)); and that the Site, the means of entering and exiting the Site and anything arising from the Site were without risks to the health and safety of any person (s 20(2)).

16    The respondent was required by the WHS Regulation to, inter alia, ensure that: no person at the Site was exposed to a substance or mixture in an airborne concentration that exceeded the exposure standard for that substance or mixture (reg 49); and monitoring was carried out to determine the airborne concentration of a substance or mixture at the Site if it was not certain the substance or mixture exceeded the relevant exposure standard, or monitoring was necessary to determine whether there was a risk to health (reg 50).

17    As at 12 and 13 August 2020, each of Mr Chris Diversi (General Foreman), Mr Peter Yamin (Senior Project Manager) and Mr Nicholas Ryan (Project Engineer) was employed by the respondent and had authority to determine (in the case of Mr Yamin – by himself or with others; and in the case of Mr Diversi and Mr Ryan – with others) whether the holders of permits issued under s 512 of the FW Act and s 134 of the WHS Act were able to enter the Site. Each was aware of the rights of officials of trade unions issued entry permits under the FW Act and WHS Act.

The contraventions

18    It is common ground that in relation to the events of 12 and 13 August 2020, which I discuss below, Mr Duff and Mr Stegic on the one hand, and Messrs Diversi, Yamin and Ryan on the other, were acting within the scope of their authority as employees of their respective employers. I note that the effect of s 793 of the FW Act is that conduct engaged in by Messrs Diversi, Yamin and Ryan on behalf of the respondent is deemed to be conduct engaged in also by the respondent; and that their states of mind with respect to particular conduct are attributable to the respondent.

First contravention

19    On or about 7 August 2020, Mr Stegic received a complaint from a worker at the Site that there was poor lighting in the southern fire stair at the Site. The employee asked that the Union investigate this matter. Mr Stegic informed Mr Duff of the complaint. As a result, Mr Stegic and Mr Duff suspected that the respondent had contravened, or was contravening, s 19 of the WHS Act.

20    At or about 9:50am on 12 August 2020, Mr Stegic and Mr Duff attended the Site for the purpose of entering the Site to inquire into the suspected contraventions. They had a right to enter the Site under s 117 of the WHS Act. They met Mr Diversi outside the Site office and Mr Stegic gave Mr Diversi a notice under s 119 of the WHS Act. Mr Diversi said he needed to get instructions from Mr Yamin. At or about 9:52am, Mr Yamin directed Mr Diversi not to allow Mr Stegic and Mr Duff entry to the Site. At or about 9:53am to 9:55am:

(1)    Mr Diversi told Mr Stegic and Mr Duff that he would not be letting them onto the Site as Mr Yamin had instructed him not to do so;

(2)    Mr Diversi said that the respondent was not letting anyone from the “CFMEU” or “ETU” onto the Site and would look at the issues itself;

(3)    Mr Stegic said that the respondent was intentionally denying, hindering and obstructing a permit holder and he would be notifying a dispute with SafeWork New South Wales, (being the regulator established under clause 1 of Schedule 2 to the WHS Act); and

(4)    Mr Diversi said that they should do what they had to do, but that he was getting directions.

21    At or about 10:00am, Mr Stegic called SafeWork and logged an entry denial dispute.

22    At or about 10:10am, Mr Yamin attended the area out the front of the Site office where Mr Stegic and Mr Duff were present. At that time, Mr Yamin asked what was happening. Mr Stegic said the respondent was in breach of the WHS Act. Mr Yamin replied that the respondent would investigate the issues raised by the s 119 notice internally, that there was no need for Mr Stegic and Mr Duff to come onto the Site, and (in a statement seemingly contradictory to the statement that the respondent would undertake an investigation) that the respondent had inspected the area and there was no issue. Mr Stegic responded that they were entitled to enter the Site.

23    At or about 10:25am on 12 August 2020, Mr Yamin allowed Mr Stegic and Mr Duff to enter the Site.

24    As noted above, the respondent has admitted that it contravened s 502(1) of the FW Act by Mr Yamin and Mr Diversi intentionally hindering or obstructing Mr Stegic and Mr Duff in the exercise of their rights as permit holders under the FW Act. The delay was more than 30 minutes. It is common ground that the respondent’s actions made more difficult, and appreciably interfered with, the rights of entry enjoyed by Mr Stegic and Mr Duff.

Events subsequent to the first contravention

25    After they entered the Site at 10:25am, Mr Stegic and Mr Duff observed:

(1)    an emergency lighting fitting that needed to be replaced;

(2)    a number of trip hazards;

(3)    a lack of temporary hand rails for workers to prevent fall hazards;

(4)    the basement area of the Site filling with smoke haze and fumes, with a diesel odour emanating from it;

(5)    a Toyota Hilux utility on level B6 with a diesel generator on the back of the utility running a pressure washer; and

(6)    that diesel fumes emanating from the generator made it difficult to breathe and hazardous to conduct work.

26    Mr Stegic and Mr Duff then requested, but were not provided with, documentation relating to the maintenance of emergency lighting at the Site. Mr Yamin and Mr Diversi said they would remove workers from the areas where the smoke haze and fumes were located.

27    At about 12:04pm, the Site was evacuated as a result of the smoke haze and fumes emanating from the diesel generator.

28    Mr Stegic and Mr Duff then met with Mr Diversi, Mr Yamin and other representatives of the respondent. During that meeting:

(1)    Mr Diversi and Mr Yamin agreed that atmospheric testing would have to be and would be undertaken before work would recommence on the Site;

(2)    Mr Stegic and Mr Duff said they would re-attend the Site the following day to follow up on the emergency lighting issues at the Site; and

(3)    Mr Diversi and Mr Yamin said that the respondent would consult with the workforce at the Site at a toolbox talk about the evacuation that had occurred that day and about information from tests that were to be performed.

29    The observations made on the Site and the subsequent meeting caused Mr Stegic and Mr Duff to suspect that the respondent had contravened or was contravening ss 19 and 20(2) of the WHS Act and regs 49 and 50 of the WHS Regulation.

Second and third contraventions

30    On 13 August 2020, at or about 7:10am, Mr Stegic and Mr Duff attended the Site so that they could investigate the suspected contraventions. They told a male employee or agent of the respondent that they wished to enter the Site to investigate the suspected contraventions. The male person said that he would tell Mr Diversi that they had arrived and ask him to meet them at the Site entrance; and that Mr Diversi had already conducted a safety walk.

31    At or about 7:21am, Mr Duff called Mr Diversi on his mobile telephone, but Mr Diversi did not answer his call. At or about 7:23am, Mr Stegic telephoned Mr Yamin on his mobile telephone, but Mr Yamin did not answer his call. At or about 7:30am, Mr Diversi approached Mr Stegic and Mr Duff and said that air quality testing had been undertaken and it was all good. Mr Stegic replied that he and Mr Duff wished to enter the Site to inspect the air quality test results and emergency lighting issues. Mr Diversi said he could not let them onto the Site, but that Mr Yamin would come down in 5-10 minutes.

32    At or about 8:00am, Mr Yamin attended the area outside the Site where Mr Stegic and Mr Duff were located with Mr Diversi and Mr Ryan. Mr Yamin told Mr Stegic and Mr Duff that only one of them would be entering the Site. Mr Duff told Mr Yamin that he could not impose such restrictions or choose which permit holders entered the Site, and he provided Mr Yamin with a notice for the purposes of s 119 of the WHS Act.

33    Mr Yamin told Mr Duff and Mr Stegic that he did not have sufficient resources to let both of them onto the Site, that he would only be allowing one of them to enter, and that if they had an issue they should call SafeWork. Mr Duff provided Mr Yamin with a further notice for the purposes of s 119 of the WHS Act.

34    At or about 8:39am, Mr Stegic and Mr Duff sought to enter the Site via a gate but a security guard barged into Mr Duff and blocked him from entering the Site. Mr Duff asked whether he was being physically blocked from entering the Site.

35    Mr Yamin then told the security guard to let Mr Stegic, but not Mr Duff, onto the Site. Mr Stegic was then permitted entry to the Site and was on the Site until about 12:00pm. Mr Duff, who was not permitted entry, waited outside the Site, monitored by Mr Ryan.

36    As noted above, the respondent has admitted that it contravened s 501 of the FW Act by: (1) unduly delaying Mr Stegic’s entry to the Site, such delay being a period of approximately 90 minutes; and (2) refusing Mr Duff entry to the Site, thereby preventing him from exercising his rights under ss 117 and 118 of the WHS Act.

Events subsequent to the contraventions

37    In late 2020, Mr Yamin and Mr Diversi resigned from the respondent’s employ to take up alternative employment.

38    On 16 April 2021, the Union commenced this proceeding by filing an Originating Application, together with a Statement of Claim. On 18 August 2021, the Union filed an Amended Originating Application and an Amended Statement of Claim. On 25 August 2021, the respondent filed its Defence, admitting the allegations in the Amended Statement of Claim.

39    On 27 September 2021, Mr Jamie Crooks, the Managing Director of the respondent provided a written apology to the Union and to Messrs Stegic and Duff, in which he stated on behalf of the respondent that: the contravening conduct was wrong and should not have occurred; he regretted that conduct and apologised for it; the recipients of the apology could be assured that the respondent was taking appropriate and necessary steps to ensure that such contraventions do not recur; the respondent was committed to a productive and collaborative relationship with the Union, particularly in relation to their shared primary objective of ensuring the highest possible levels of safety on construction sites; and the respondent was thankful to the Union for its work in representing and supporting its members.

40    The respondent employs approximately 770 people and has around 45 to 50 construction projects in progress at any one time. Those projects are for government and private clients, with contract values ranging generally between $5 million and $300 million.

41    Mr Grippi’s evidence is that he will ensure that in the future the respondent carries out ROE Training on a quarterly basis for all staff that have a role in dealing with requests for entry to the respondent’s sites.

Consideration

Relevant principles

42    Section 546 of the FW Act provides that the Court may order a person to pay a pecuniary penalty that the Court considers “appropriate” in respect of a contravention of a civil penalty provision, up to the maximum penalty specified in s 539(2) of that Act.

43    The approach to be taken in deciding what penalty is appropriate was explained by the High Court of Australia in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 96 ALJR 426. In Pattinson, the plurality (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) held that civil penalties, in contrast to punishments imposed by the criminal justice system, are imposed primarily, if not solely, for the purpose of deterrence: Pattinson at [9] to [10] and [16] to [17]. Deterrence is both specific and general and the penalty must be sufficiently high that it is not considered to be an acceptable cost of doing business, but should not exceed what is necessary to achieve the object of deterrence: Pattinson at [10], [17] and [66]. The penalty is not to be fixed by reference to the concept of proportionality: Pattinson at [39] to [49], [69] to [72].

44    As the Full Court (Moshinsky, O’Callaghan and Snaden JJ) observed in Australian Building and Construction Commissioner v Australian Workers’ Union [2022] FCAFC 143 at [101]:

The relevant considerations in fixing a penalty of appropriate deterrent value were referred to by the High Court plurality in Pattinson (HC) at [18], by reference to the judgment of French J (as his Honour then was) in Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,152-52,153. The plurality observed, at [19], that “[i]t may readily be seen that this list of factors includes matters pertaining both to the character of the contravening conduct … and to the character of the contravenor”. The plurality also noted that “[i]t is important, however, not to regard the list of possible relevant considerations as a ‘rigid catalogue of matters for attention’ as if it were a legal checklist” (footnotes omitted). See also Pattinson (HC) at [46]-[47].

45    The considerations set out by French J (as his Honour then was) in Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) 13 ATPR ¶41-076 at 52,152–52,153 are:

1.    The nature and extent of the contravening conduct.

2.    The amount of loss or damage caused.

3.    The circumstances in which the conduct took place.

4.    The size of the contravening company.

5.    The degree of power it has, as evidenced by its market share and ease of entry into the market.

6.    The deliberateness of the contravention and the period over which it extended.

7.    Whether the contravention arose out of the conduct of senior management or at a lower level.

8.    Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.

9.    Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

Consideration

46    The following matters suggest that a substantial penalty is required to achieve the object of deterrence.

47    First, the contraventions were of ss 501 and 502 of the FW Act, which are sections designed in part to protect the health and safety of workers and are objectively serious because they affected the investigation of suspected contraventions of obligations relating to such protection. I respectfully adopt the analysis of Wigney J in Richard Crookes at [173] to [174]:

Sections 501 and 502 of the Fair Work Act are part of a statutory scheme which aims to balance the interests of occupiers of premises, employers, unions and employees in respect of the rights of entry to premises: Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15; [2015] FCAFC 56. One of the obvious objectives of that scheme is to secure the health and safety of workers and workplaces. As Tracey J observed in Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd (No 2) [2017] FCA 1237 at [43], “the protection of workers’ safety on building sites is a highly important function and breaches of provisions such as s 501 have the potential fundamentally to undermine workers’ safety”.

Contraventions of ss 501 and 502 of the Fair Work Act by an employer are, by their very nature, objectively serious, particularly where entry to the premises was sought to investigate suspected contraventions relating to the safety of workers and the workplace in question. As a general proposition, higher penalties are likely to be appropriate to secure effective deterrence, particularly general deterrence, in circumstances where the mischief to which the civil penalty provision in question is directed is serious. In the case of ss 501 and 502 of the Fair Work Act, it “must be made clear to employers that they are not entitled to deny access to their premises to union officials who are exercising lawful rights of entry under the [Fair Work] Act”: Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989 at [23].

48    As noted above, Mr Duff and Mr Stegic sought entry to the Site because of concerns as to the safety of workers on the Site arising from, inter alia, poor lighting in a fire stair; a number of trip hazards; an absence of hand-rails; smoke haze and fumes in the basement area; and the emission of diesel fumes, which made breathing difficult and working hazardous. This highlights the gravity of the contravening conduct. As Tracey J explained in Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd (No 2) [2017] FCA 1237 at [43], the permit holder is entitled to unimpeded access to the site to ascertain whether the health and safety of workers has been compromised and where this does not occur it has the potential to fundamentally undermine workers’ safety. Whilst there was, as the respondent submitted, a delay between the first complaint on 7 August 2020 and the first inspection on 12 August 2020 which suggests that the lighting deficiency was not serious, there was no such delay between that first inspection and the second inspection on 13 August 2020 after the first inspection revealed a number of matters requiring attention.

49    The respondent submitted that its employees were entitled to some time to satisfy themselves that the preconditions to entry had been met before allowing entry. On the assumption that this is so, the submission goes nowhere absent evidence (of which there is none) that this was the cause of the delay or that such conditions had not been met.

50    The Union submitted that the contravening conduct was the product of a corporate-wide policy (as opposed to a decision by Mr Yamin) not to allow entry to permit holders from the Union. I do not accept that submission. It is not made out on the evidence and is contrary to the unchallenged evidence of Mr Grippi.

51    Secondly, the contravening conduct was flagrant and deliberate. This is particularly so for the second and third contraventions on 13 August 2020, which occurred after Mr Stegic and Mr Duff identified particular health and safety issues the previous day, discussed them with Mr Diversi and Mr Yamin and foreshadowed that they would return on 13 August 2020. The third contravention is more serious than the second, involving an outright refusal to allow Mr Duff onto the Site and Mr Yamin instructing a security guard to prevent Mr Duff’s entry after the security guard had barged into Mr Duff and blocked his entry. I also take into account that Mr Diversi was a General Foreman and Mr Yamin was a Senior Project Manager, titles which suggest that each had some substantial level of responsibility within the respondent.

52    Thirdly, the respondent typically has around 45 to 50 construction projects in progress at any one time with contract values ranging generally between $5 million and $300 million. It also employs in the order of 770 people. This suggests the size of the respondent’s operations means that requests for entry may be expected on a regular basis, and that the respondent has considerable resources from which to pay any penalties that may be imposed.

53    I take into account the following matters which suggest the objective of deterrence might be achieved with a lower penalty:

(1)    the contrition shown by the respondent. In this regard, the respondent provided the apology on 21 September 2021. I accept that the apology was not provided until more than a year had passed since the contraventions; however, the respondent’s managing director made it not long after the Union filed its Amended Statement of Claim;

(2)    Mr Diversi and Mr Yamin, the centrally involved employees, are no longer employed by the respondent;

(3)    the respondent has conducted ROE Training and it is committed to doing so on an ongoing quarterly basis. Whilst this did not prevent the contraventions, the existence of this training and the commitment to its continuance does lessen the need for specific deterrence; and

(4)    the respondent admitted the contraventions early in the proceeding.

54    I have also considered the extent of the contravening conduct and whether it is part of a pattern of conduct, such that a significant penalty is required to deter future contraventions. That conduct occurred over two days, so is not, of itself, an extensive pattern of conduct. However, as noted above, the respondent admitted to five other contraventions of ss 501 and 502 of the FW Act, three of which occurred prior to the contraventions in this proceeding. Mr Yamin was involved in all three of those contraventions and Mr Diversi in one. Against this, there is no evidence of contraventions prior to May 2020 and as noted above the respondent has been operating since 1976. Taking all of this into account, I regard it as a neutral factor.

55    The imposition of an appropriate penalty is not a mathematical exercise, rather it involves a balancing of the competing considerations. Taking all of the above matters into account, the appropriate penalties are:

(1)    $20,000 for the first contravention;

(2)    $35,000 for the second contravention; and

(3)    $45,000 for the third contravention.

FORM OF declarations

56    The Union seeks, and the respondent does not oppose, the making of declarations. The Court must satisfy itself that the making of the declarations sought is an appropriate exercise of its discretion: see Richard Crookes at [210] to [213]. Such relief is appropriate in the present case, particularly as it would reflect the Court’s disapproval of the conduct constituting the contraventions and provide deterrence to the respondent and others from engaging in similar conduct.

57    The Union seeks a variation of the form of declarations set out in its Amended Originating Application. The respondent’s position is that the Union should be held to the form of the declarations as sought. In the absence of an application to amend the Amended Originating Application, I agree with the respondent.

conclusion

58    For the reasons set out above, declarations should be made substantially in the form of those sought in the Amended Originating Application and the penalties described above should be imposed upon the respondent. The Union seeks, and the respondent does not oppose, an order that the respondent pay the penalties to the Union. I will make orders accordingly.

Associate:

Dated:    27 September 2022