Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Orders A, B, C and D of the orders made by the Federal Circuit and Family Court of Australia (Div 2) on 3 February 2022 are set aside.

3.    The first appellant pay a pecuniary penalty of $36,630 for each of its two contraventions of s 500 of the Fair Work Act 2009 (Cth) (the Act), a total of $73,260, to the Commonwealth of Australia within 28 days.

4.    The second appellant pay a pecuniary penalty of $6,000 for his contravention of s 500 of the Act to the Commonwealth of Australia within 28 days.

5.    The third appellant pay a pecuniary penalty of $4,660 for his contravention of s 500 of the Act to the Commonwealth of Australia within 28 days.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FedCFamC2G 40, pecuniary penalties were imposed upon the appellants for contraventions of s 500 of the Fair Work Act 2009 (Cth) (the Act).

2    The appellants have appealed against the quantum of the pecuniary penalties, contending that they are manifestly excessive and, in addition, are affected by specific errors.

3    After the hearing of the appeal, the office of the Australian Building and Construction Commissioner was abolished under Schedule 1 Part 3 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). The Fair Work Ombudsman, which has assumed the functions of that office, has been substituted as the respondent.

4    In the course of argument, the respondent conceded three of the appellants’ grounds of appeal. I am satisfied that those concessions were correctly made. It is necessary to set aside the orders imposing the pecuniary penalties and to re-determine the appropriate penalties.

5    I will proceed by describing the factual background, the reasons of the primary judge and the conceded grounds of appeal, before considering the appropriate penalties.

Factual background

6    The second appellant, Andrew Blakeley, is employed as an organiser by the first appellant (the Union). The third appellant, Michael Ravbar, is a senior official of the Union.

7    In 2020, Lendlease Building Pty Ltd (Lendlease) was engaged in the construction of the Southbank New Performing Arts Complex at South Brisbane in Queensland. One of Lendlease’s employees, Peter Bransdon, was the Union’s delegate for the project.

8    In late October 2020, Lendlease was informed by Mr Bransdon that some persons from the Union would come to the construction site (the site) to meet with Union members at 6.30 am on 5 November 2020 to hold discussions about a proposed enterprise bargaining agreement.

9    On 4 November 2020, Lendlease issued a memorandum to its employees at the site stating that they were authorised to attend the meeting with the Union upon conditions that the meeting would be held off-site and last no longer than 60 minutes. Lendlease booked a meeting room located off-site, across the street from the site.

10    At about 6.10 am on 5 November 2020, a group of approximately 10 to 12 persons including Mr Blakeley approached the pedestrian access gate for the site. Mr Bransdon indicated that the group was there for the meeting.

11    A Lendlease foreman said that the meeting could be conducted off-site, and that the group was not allowed to come onto the site. Mr Bransdon insisted that they were coming onto the site.

12    Eventually, Mr Blakeley stepped forward towards the Lendlease foreman, causing the foreman to step backwards. Mr Blakeley then stepped into the gate opening and stood with his arms outstretched to form a barrier. Either Mr Bransdon or Mr Blakeley said, “C’mon boys, come through”, and signalled with his hands for the group to walk through the gate.

13    Mr Bransdon, Mr Blakeley and the group then walked into the lunchroom on the site. A few minutes later Mr Bransdon and Mr Blakeley returned to the gate and left the site.

14    Mr Ravbar then arrived and approached the gate with Mr Bransdon and Mr Blakeley. The Lendlease foreman told them that they were not allowed onto the site. Mr Bransdon said that they were coming on, and they entered the site and went into the lunchroom. Mr Blakeley and Mr Ravbar conducted a meeting in the lunchroom. At about 7.45 am, Mr Blakeley and Mr Ravbar left the site.

15    When entering the site, Mr Blakeley and Mr Ravbar were seeking to exercise a right in accordance with Pt 3-4 of the Act, namely to attend a meeting to hold discussions about a proposed agreement pursuant to s 484 of the Act.

16    Neither Mr Blakeley nor Mr Ravbar provided an entry notice to Lendlease in accordance with s 487 of the Act. As a result, neither of them were entitled to lawfully enter the site, remain on the site or hold discussions with workers upon the site without the permission of Lendlease.

17    Mr Blakeley admitted that he had acted in an improper manner and contravened s 500 of the Act in that he:

(a)    entered the site without giving 24 hours written notice in breach of s 487 of the Act;

(b)    entered and remained on the site in circumstances where he had no lawful basis to do so;

(c)    failed to comply with the site’s occupational health and safety requirements that prohibited unauthorised access and required visitors to report to the site office;

(d)    entered and remained on the site in direct contradiction of Lendlease’s request to conduct the meeting off-site;

(e)    attended the meeting which was not authorised to be held on site; and

(f)    facilitated the entry of the group onto the site in circumstances where he knew that they were not authorised to be on the site.

18    Mr Ravbar admitted that he had acted in an improper manner and thereby contravened s 500 of the Act by engaging in the conduct described at (a) – (e) of the preceding paragraph.

19    The Union admitted that it was “involved in” the conduct of Mr Blakeley and Mr Ravbar, within s 550(2) of the Act, and was thereby taken to have engaged in two contraventions of s 500 of the Act.

The legislative provisions

20    Part 3–4 of the Act (ss 478 to 521D) deals with the “Right of entry”.

21    Section 484 of the Act provides:

484    Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a)    who perform work on the premises; and

(b)    whose industrial interests the permit holder’s organisation is entitled to represent; and

(c)    who wish to participate in those discussions.

…

Note 3:    Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.

22    Section 486 provides that a permit holder is not authorised to enter or remain on premises, or exercise any other right, if he or she contravenes Subdiv C – Requirements for permit holders (ss 486-493), or the prescribed regulations, in exercising that right.

23    Section 487(1) provides, relevantly, that the permit holder must, before entering the premises, give the occupier and any affected employer an entry notice for the entry. Section 487(3) requires that the entry notice to be given at least 24 hours before entry.

24    Section 491 requires a permit holder to comply with any reasonable request by the occupier for the permit holder to comply with an occupational health and safety requirement that applies to the premises.

25    Section 492 of the Act provides:

492    Location of interviews and discussions

(1)    The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

(2)    Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.

(3)    The permit holder may conduct the interview or hold the discussions in any room or area:

(a)    in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b)    that is provided by the occupier for the purpose of taking meal or other breaks.

…

26    Section 500 of the Act provides, relevantly:

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).

…

27    Section 546 of the Act provides:

546    Pecuniary penalty orders

(1)    The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Note:    penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

Determining amount of pecuniary penalty

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

(a)    if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

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

…

28    Section 550 of the Act provides:

550    Involvement in contravention treated in same way as actual contravention

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

…

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced the contravention, whether by threats or promises or otherwise; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)    has conspired with others to effect the contravention.

The judgment of the primary judge

29    As has been indicated, Mr Blakeley and Mr Ravbar each admitted one contravention and the Union admitted two contraventions of s 500 of the Act.

30    The primary judge’s reasons began by considering whether the contraventions took place within a single course of conduct. His Honour found that Mr Blakeley and Mr Ravbar had arrived at the construction site within a few minutes of each other and had each attended to the site for the purpose of conducting an unauthorised on-site meeting with Union members and other employees. His Honour found that their unauthorised actions, “were designed to have the effect of showing they would not kowtow to the wishes of the contractor, irrespective of the reasonableness of the arrangements for the conduct of the meeting which had been made by such contractor”. The primary judge found that the contraventions were part of a single course of conduct.

31    The primary judge observed at [14] that the appropriate penalty must also be determined by reference to the past conduct of the Union. His Honour, adopted the opinion of the Full Court in Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580 (Pattinson (FFC)) at [162], that, “in the furtherance of the object of deterrence of the kind of contravention before the court, the court’s task is to set an appropriate penalty for the instant contravention that is proportionate to the nature and gravity of that contravention informed by all relevant circumstances”. It may be observed that the primary judgment was delivered prior to Australian Building and Construction Commission v Pattinson [2022] HCA 13; (2022) 96 ALJR 426 (Pattinson (HC)), which overturned Pattinson (FFC).

32    The primary judge noted at [18] that a schedule produced by the respondent showed 171 contraventions by the Union which had been the subject of court orders prior to 5 November 2020, indicating that attempts by the courts over time to deter ongoing contraventions by the Union had been unsuccessful. His Honour considered that there was no doubt that the Union was, “a rogue union untroubled by its ongoing bad behaviour”.

33    The maximum penalty able to be imposed upon the Union was $66,600 for each contravention. His Honour held that a penalty of 90% of the maximum should be imposed on the Union in respect of each of its two contraventions of s 500. Accordingly, his Honour concluded that two penalties of $59,940 should be imposed upon the Union.

34    The primary judge’s reasoning for that conclusion was explained at [23]:

In imposing such penalties, the Court has had particular regard to the following:

(a)    The Union’s lack of contrition for the contravening conduct.

(b)    The admission of liability, albeit at a late stage of the proceeding, shortly before the listed trial hearing dates.

(c)    The Union’s past contravening conduct.

(d)    The pointless insistence on the holding of an on-site meeting when the contractor had made entirely reasonable arrangements for the holding of such meeting off-site across the street.

(e)    The Court time wasted consequent upon the vacation of four listed hearing days consequent upon Judge’s chambers being advised that only one day out of five would be required for the hearing of the matter.

(f)    The unnecessary expense incurred by the Applicant, pursuant to the fulfilment of its statutory compliance duty, where such actions as were taken by it ought never to have been necessary.

(g)    The time lost, and necessary expense incurred, by the contractor, for the purpose of its relevant agents and employees taking time off to assist the Applicant in the preparation for, and presentation of, its case.

35    The primary judge then considered the penalty appropriate to be imposed on Mr Ravbar, referring to his seniority within the Union, and finding that he was well aware of the need for compliance with provisions of the Act, but, “chose to pointlessly flout his obligation to do so”. His Honour noted that on 22 December 2000, Mr Ravbar had been found to have contravened the Workplace Relations Act 1996 (Cth) by seeking to have an employee removed from a worksite because the employee had failed to join the predecessor of the Union.

36    The maximum penalty able to be imposed on Mr Ravbar for his contravention of s 500 of the Act was $13,320. His Honour held that it was appropriate to impose a penalty of 80% of that amount, namely $10,656. His Honour took into account Mr Ravbar’s senior position, his prior contravening conduct, his “brazen disregard” for the requirements of the Act, and the need for deterrence.

37    The primary judge noted that Mr Blakeley had not previously been found to have contravened the Act. His Honour considered Mr Blakeley’s actions to be similarly “brazen and pointless”. His Honour took into account that Mr Blakeley was not a senior member of the Union and that he might be seen to have been acting under the instruction or influence of Mr Ravbar. His Honour held that it was appropriate to impose a pecuniary penalty of 60% of the maximum upon Mr Blakeley, namely $7,992.

38    The admissions made by the appellants were also reflected in declaratory orders made by the primary judge.

The Amended Notice of Appeal

39    The appellants’ Amended Notice of Appeal is written and structured in a complex and confusing manner. It commences by alleging that the penalties imposed upon each of the appellants were manifestly excessive. It then alleges that the penalties imposed upon each of the Union, Mr Blakeley and Mr Ravbar involved a number of specific errors. There is substantial overlapping of the errors alleged.

40    On my understanding of the Amended Notice of Appeal, the specific errors alleged in respect of the penalties imposed on the Union can be summarised as follows:

(1)    Failing to apply the totality principle when imposing two penalties of 90% of the maximum.

(2)    Failing to have any, or any proper, regard to the objective circumstances of the contraventions which, it is asserted, placed them below the mid-range of seriousness.

(3)    Failing to take into account a relevant consideration, namely the absence of loss or any other adverse consequence as a result of the contraventions.

(4)    Taking into account as a circumstance of aggravation of the penalties, the matters listed at [23](d)–(g) of the reasons (although the ground, as argued, is only concerned with [23](e)–(g)).

(5)    Failing to take into account the utilitarian value of the Union’s cooperation.

(6)    Failing to take into account that the admissions by the Union followed significant amendments to the respondent’s statement of claim.

(7)    Making findings, in the absence of evidence, that;

(a)    the actions of Mr Blakeley and Mr Ravbar were designed to show that, “they would not kowtow to the wishes of the contractor”; and

(b)    Mr Blakeley was acting under the instructions of Mr Ravbar.

(8)    Failing to identify whether any of the Union’s prior contraventions, and if so, which, were relevant to the contraventions under consideration.

41    In respect of the penalty imposed upon Mr Blakeley, the appellants make the second to seventh even allegations of error, but omit the eighth.

42    In respect of the penalty imposed upon Mr Ravbar, the appellants also make the second to seventh allegations. There are also three further allegations, namely, that the primary judge erred in:

(1)    Giving weight to Mr Ravbar’s unrelated contraventions and failing to reflect his limited history of contravening.

(2)    Failing to take into account that Mr Ravbar had ceased to be a permit holder.

(3)    Taking into account Mr Ravbar’s status as a senior official of the Union.

43    It may be noted that the appellants do not challenge the declaratory orders made by the primary judge, nor the making of orders for payment of pecuniary penalties. Only the quantum of the penalties is challenged.

The conceded grounds of appeal

44    In the course of the hearing, the respondent conceded that the primary judge had made three of the errors alleged by the appellants. For the reasons that follow, the respondent’s concessions were correctly made.

45    The first error conceded by the respondent was that the primary judge failed to take into account the absence of loss or other adverse consequences as a result of the contraventions. That concession was made in respect of the penalties imposed upon each of the three appellants.

46    In Re Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076, French J at 52,152–52,153 listed a number of factors which may inform the assessment of an appropriate penalty to deter future contraventions, including the amount of loss or damage caused. That passage was cited with approval by the plurality in Pattinson (HC) at [18]. In Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249, the Full Court observed that the absence of loss or damage is a circumstance which would usually attract a less severe penalty than where substantial harm has been inflicted.

47    The appellants submitted before the primary judge, and the respondent conceded, that there was no loss or other adverse consequences to Lendlease. However, that factor was not referred to in his Honour’s reasons. I accept that the appropriate inference is that his Honour failed to take it into account.

48    In Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088, Gummow and Callinan JJ held at [24] that, “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord … natural justice”. While that passage was concerned with administrative decision-making, it has also been applied to the failure of a court to engage with an argument clearly made by a party: see Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 at [19]; Goodwin v Commissioner of Police [2010] NSWCA 239 at [40], [43]; see also, Liddell Coal Operations Pty Ltd v Hector [2021] NSWCA 47 at [53]; Day v SAS Trustee Corporation [2021] NSWCA 71 at [15].

49    The primary judge erred by failing to consider the appellants’ argument concerning the absence of loss or other adverse consequences.

50    The next error conceded by the respondent was that the primary judge took into account the matters listed at [23](e)–(g) of the reasons as a circumstance of aggravation of the appellants’ conduct. Those matters were:

(e)    The Court time wasted consequent upon the vacation of four listed hearing days consequent upon Judge’s chambers being advised that only one day out of five would be required for the hearing of the matter.

(f)    The unnecessary expense incurred by the Applicant, pursuant to the fulfilment of its statutory compliance duty, where such actions as were taken by it ought never to have been necessary.

(g)    The time lost, and necessary expense incurred, by the contractor, for the purpose of its relevant agents and employees taking time off to assist the Applicant in the preparation for, and presentation of, its case.

51    In the context of criminal proceedings, in Cameron v The Queen (2002) 209 CLR 339, the plurality held at [12] that, although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial: see also Siganto v The Queen (1998) 194 CLR 656 at [22]. In the context of pecuniary penalty proceedings, in Australian Securities and Investments Commission v Citrofresh International Ltd (No 3) [2010] FCA 292; (2010) 268 ALR 303, Goldberg J applied this principle at [24]-[27] when rejecting a submission that it was an aggravating factor that the respondent had contested the proceedings: see also Secretary to Department of Education and Training v Paul [2020] VSCA 280 at [132]; Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [11].

52    The Union had contested the proceeding brought by the respondent before admitting its contraventions some 14 days prior to the scheduled hearing. The admissions followed the making of amendments to the Statement of Claim by the respondent. The primary judge took into account the wastage of the Court’s time consequent upon the vacation of four of the hearing days, the unnecessary expense incurred by the respondent and the time lost and expense incurred by Lendlease through its agents and employees taking time off for preparation of the case. It is apparent that the primary judge treated the Union’s conduct in failing to admit the contraventions at an early stage and initially contesting the proceeding as an aggravating factor. His Honour evidently considered that those matters should result in the imposition of higher penalties than would have otherwise been imposed.

53    In my respectful opinion, it was an error for the primary judge to treat the Union’s failure to admit the contraventions at early stage and contesting the proceeding as an aggravating factor. The Union was entitled to require the respondent to prove its case without being penalised for doing so. The fact that the Union initially chose to contest the proceeding could be regarded, at worst, as demonstrating the absence of a mitigating factor, but could not be treated as a factor aggravating the Union’s offending and warranting a higher penalty. The respondent’s concession was correctly made.

54    The third error conceded by the respondent was that the primary judge failed to take into account a clearly articulated argument that since Mr Ravbar had ceased to be a permit holder, there was no need for the penalty imposed upon him to reflect a need for specific deterrence.

55    It was an agreed fact before the primary judge that Mr Ravbar no longer held an entry permit under Pt 3-4 of the Act. In Pattinson (HC), the plurality observed at [47] that a penalty may be moderated by changes in the membership of an industrial organisation which reduce the risk of similar contraventions arising in the future. That Mr Ravbar no longer had an entry permit and could no longer contravene s 500 of the Act was a matter that could bear upon the need for specific deterrence and, consequently, the appropriate penalty. It is apparent that the primary judge overlooked that argument. The respondent’s concession was correctly made.

56    The errors conceded by the respondent make it necessary to for the primary judgment to be set aside and for the Court to re-determine the appropriate penalties.

Redetermination of penalties

57    Once an appellate court concludes that penalties imposed by the primary judge are to be set aside, it is necessary for the appellate court to determine the appropriate penalties for itself: Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312; [2017] FCAFC 159; ATPR 42-557 at [573].

58    An appellate court’s determination of the appropriate penalty is usually made on the basis of the material placed before the court at first instance and the sentencing judge’s unchallenged factual findings: Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40 at [124]. In this case, the appellants challenge the primary judge’s factual findings identified at para [40](7) above and also contend that I should draw several different inferences from the facts found by his Honour. In addition, the respondent submits that I should have regard to certain material that was not before the primary judge.

59    At the hearing, three disputes involving issues of legal principle emerged. They were:

(1)    Whether the Court can take into account the utilitarian value of the appellants’ admissions.

(2)    Which of the Union’s previous contraventions of industrial laws can be taken into account.

(3)    Whether the Court can take into account that there have been two judgments since the hearing before the primary judge determining that Mr Blakeley contravened the Act prior to the instant contravention.

60    As each of these issues is affected by Pattinson (HC), it may be useful to provide an overview of that case at this stage.

61    The High Court was concerned with an appeal from a judgment of the Full Court of the Federal Court. The Full Court had allowed an appeal from a judgment of a single judge imposing penalties on the Union for two contraventions of s 349(1) of the Act. Since 2000, the Union had contravened civil remedy provisions of the Act or its predecessor on at least 150 occasions and had contravened s 349(1) on at least seven occasions. The primary judge considered that the gravity, seriousness, nature and character of the instant contraventions were affected by the Union’s history of similar contraventions. His Honour considered it appropriate to impose on the Union two penalties set at the statutory maximum, but to halve each penalty to reflect that they arose in the same course of conduct.

62    The Full Court held that a statutory maximum penalty was intended to be reserved for cases in which the, “circumstances, including the nature and gravity of the contravention…warrant or call for the highest possible level of deterrence as reasonably appropriate”. It was held that a case could not be in the worst category merely by reason of the contravener having a history of prior contraventions: to impose the maximum penalty in such a case would be to impose a penalty disproportionate to the nature, gravity and seriousness of the instant contravention. The Full Court considered that the primary judge had erred in imposing what was, in effect, the maximum penalty, which ought to have been reserved for the most serious examples of conduct contravening s 349(1) of the Act.

63    In Pattinson (HC), the plurality held that the purpose of a civil penalty under the Act is “primarily, if not solely”, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act: at [9]. The power conferred by s 546 of the Act is not subject to constraints such as a notion of proportionality drawn from the criminal law: at [10]. Section 546 of the Act does not require that the maximum penalty be reserved for the most serious examples of misconduct: at [49].

64    The plurality held that what is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed: at [10], [53]. That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: deterrence of future contraventions of a like kind by the contraveners and others: at [10].

65    The plurality also observed that where it is evident that a contravention has occurred as a matter of industrial strategy pursued without regard for the law, it is open to a court to reasonably conclude that no penalty short of the maximum would be appropriate: at [67]. Section 546 requires the court to ensure that the penalty strikes a reasonable balance between deterrence and oppressive severity: a penalty greater than is necessary to achieved deterrence would be oppressive: at [40]–[41]. The plurality described the “real task” under s 546 as “fixing the penalty which [the Court] considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the Act”: at [71].

66    At this stage, I will consider the three issues involving the points of legal principle outlined earlier.

Whether the Court can take into account the utilitarian value of the appellants’ admissions

67    The respondent submits that Pattinson (HC) establishes that the sole purpose of imposing a pecuniary penalty is to deter future contraventions. The respondent argues that admissions made by a contravener can only be relevant to the extent they relate to deterrence, and they will not relate to deterrence unless they can be seen as going to the character of the contravener. It is submitted that as the “utilitarian value” of admissions is not, of itself, relevant to character, it is irrelevant to the assessment of the appropriate penalty.

68    The respondent relies upon Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383, where Stone and Buchanan JJ held at [76] that a discounted penalty should not be available simply because a contravener has spared the community the cost of the contested trial. The respondent submits that in the absence of evidence, it cannot be assumed that the appellants’ motivation for making their admissions is to facilitate the course of justice, rather than, for example, to spare themselves the cost of a hearing.

69    The appellants rely upon the judgment in Pattinson (FFC), where the Full Court held at [210] that the absence of contrition did not diminish the legitimacy of recognising the public policy involved in recognising admissions. The appellants submit that Pattinson (HC) did not controvert that aspect of Pattinson (FFC). It may be noted that the appellants have not sought to argue that discounting a penalty to reflect the utilitarian value of admissions is compatible with the purpose of deterrence.

70    An examination of the decided cases shows that contraveners’ admissions have been taken into account to reduce civil penalties in three ways. First, in some cases, admissions have been found to reflect remorse on the part of the contravener. Second, in some cases, admissions have been taken to reflect a willingness of the contravener to facilitate, or cooperate in, the course of justice. Third, in some cases, penalties have been reduced to reflect the public interest in the saving of public resources brought about by admissions.

71    As to the first of these factors, there is no suggestion by the appellants that their admission of the contraventions in this case demonstrates contrition. The second factor has been described as, “an acknowledgement that the charge has been rightly laid and evidenc[ing] a preparedness by the offender to relinquish his or her right to contest the charges and to submit to punishment”: Director of Public Prosecutions (Cth) v Thomas (2016) 53 VR 546 at [7]. The third factor is commonly described as reflecting the “utilitarian value” of admissions.

72    There is some difference in the authorities as to whether utilitarian value is a distinct basis for reducing a penalty, or is better regarded as an aspect of willingness to facilitate the course of justice. In Signato, Gleeson CJ, Gummow, Hayne and Callinan JJ at [22] drew a distinction between the two:

A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.

73    However, in Cameron, Gaudron, Gummow and Callinan JJ, after referring to Siganto, held:

11     It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.

…

13    It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another’s plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.

14    Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the expense of a contested hearing.

74    It can be seen that in Cameron, the plurality regarded the making of admissions which save the community the expense of a trial as reflecting a willingness to facilitate the course of justice. To similar effect, in DPP (Cth) v Thomas, the Victorian Court of Appeal explained at [7]:

A willingness to facilitate, or co-operate in, the course of justice is manifested by an offender’s plea of guilty. The plea, by its very nature, constitutes an acknowledgement that the charge has been rightly laid and evidences a preparedness by the offender to relinquish his or her right to contest the charges and to submit to punishment. The offender’s willingness to follow that course, often described in the authorities as ‘co-operation’, vindicates the course of justice, saves the community the expense of a trial and releases witnesses from the ordeal of a trial. These considerations provide the primary basis for the discount for a plea of guilty.

75    On the other hand, in Mornington Inn Pty Ltd v Jordan, Stone and Buchanan JJ, drew a distinction between a contravener’s willingness to facilitate the course of justice and the sparing of the community the expense of a trial. Their Honours held:

76    … Nevertheless, in our view, it should be accepted, for the same reasons as given in Cameron, that a discount should not be available simply because a respondent has spared the community the cost of a contested trial. Rather, the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice.

77    A respondent who admits liability will spare itself the unnecessary cost of a contested hearing. Its motivation, therefore, should not be regarded as unduly altruistic... It is impossible to resist a conclusion that the appellant was finally moved by its assessment of the strength of the case against it rather than any desire to facilitate the course of justice.

(Citations omitted.)

76    Their Honours considered that a contravener’s admissions should not automatically be regarded as reflecting a desire to facilitate the course of justice that results in a discounted penalty, and considered that the contravener’s motivation is relevant. However, other Full Courts have taken a different approach, discounting penalties on the basis of the public policy rationale of encouraging the saving of resources that would otherwise be expended by regulators and courts in the conduct of a contested trial.

77    In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, the Full Court observed at 293:

It is well settled that, in the assessment of a penalty, a respondent withdrawing defences and acknowledging liability is entitled to special consideration of reduction of the amount that would otherwise be assessed.

78    It may be noted that the Full Court at 297-298 rejected the proposition that, “a factor…diminishing the credit to which the appellant’s cooperation entitled it”, was that, “its cooperation had also saved it a very significant amount of legal costs”.

79    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 (the Queensland Infrastructure Case), the Full Court found:

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…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.

80    In Pattinson (FFC) the plurality at [207] accepted that the Queensland Infrastructure Case had, “described the correct way to approach the utilitarian (as opposed to contritional) feature of early cooperation”. Their Honours stated at [209]:

The reasons of the primary judge link the utilitarian value of the (here early) admissions and the connected public policy involved on the one hand, and contrition on the other. The two concepts, of course, may be related on the facts of any particular case. But they do not involve the same legal concept or consideration. There were early admissions and utilitarian value from them, but there was no contrition. The latter does not diminish the legitimacy of consideration to the public policy involved in recognising admissions, especially early admissions.

81    The Full Court at [219] gave, “due allowance for the important public policy of cooperation, albeit without any contrition”.

82    Nevertheless, the respondent submits that in Pattinson (HC), the High Court determined that the only purpose of a pecuniary penalty is deterrence (specific and general) of like offending, and that purpose is inconsistent with allowing a reduction of the penalty for the utilitarian value of admissions. As has been indicated, the appellants did not seek to argue that a reduction of the penalty for the utilitarian value of admissions is consistent with Pattinson (HC).

83    I accept that there may be some difficulty in reconciling the plurality’s description of the purpose of a civil penalty in Pattinson (HC) as “deterrence of future contraventions of a like kind” with judgments of Full Federal Court approving the practice of discounting penalties in order to encourage cooperation and free-up public resources. In Pattinson (HC), the plurality explained at [15] that the purpose is, “to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act”. A contravener may admit contraventions for purely selfish reasons, such as saving itself the cost of a trial, rather than any motivation of cooperating in the interests of justice and saving public resources. In such a case, it is difficult to see that discounting the penalty would be consistent with deterring the contravener or others from future contraventions and, in fact, may encourage contraventions since a prospective contravener knows that any penalty will be discounted upon the making of early admissions. In addition, it does not seem consistent with Pattinson (HC) to first determine a civil penalty that places a price on a contravention that is sufficiently high to deter repetition by the contravener and others, but then discount the penalty to below that level to take into account the public interest in freeing-up public resources

84    There may be at least two ways of seeking to reconcile the emphasis in Pattinson (HC) on deterrence (both specific and general) with the discounting of a penalty to encourage cooperation in order to save public resources.

85    First, it is not entirely clear that the High Court definitively held that deterrence was the only purpose of a pecuniary penalty, or that the High Court considered that factors unrelated to deterrence were incapable of operating in mitigation of a penalty.

86    In Pattinson (HC), the plurality cited, with apparent approval, a passage from Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2018) 264 FCR 155 at [19], where the Full Federal Court stated that the “principal and indeed only object” of the imposition of a civil penalty is deterrence. The plurality at [10] also described “the purpose of s 546” as deterrence. However, the plurality was less definitive elsewhere: for example, holding at [15] that, “civil penalties are imposed primarily, if not solely, for the purpose of deterrence”, and referring at [42] to, “the primary significance of deterrence”, and at [43] to, “the primacy of deterrence”.

87    The High Court did not definitively state that factors unrelated to deterrence could never be applied to reduce a civil penalty. It is not unrealistic to consider a circumstance where an employee establishes a breach of the Act by their employer, but the imposition of a penalty at a level appropriate for general deterrence would mean that the employer’s business, and with it the employee’s employment, would collapse. On the respondent’s argument, a penalty appropriate for both general and specific deterrence must be imposed without consideration of any potentially adverse consequences for the employee, such as the deprivation of an award of compensation or loss of employment, flowing from the penalty. An inflexible approach of that kind might deter the making of some complaints of contravention. Allowing a court some greater flexibility in determining an “appropriate” penalty would seem more consistent with the protective purposes of the Act.

88    It is possible that the High Court refrained from definitively stating that the only purpose of a penalty is deterrence in order to leave open the possibility that a penalty may be reduced by some public interest or other factors that are inconsistent with deterrence. The utilitarian value of admissions might be in that category.

89    Another possible way of reconciling the views in Pattinson (HC) with the discounting of a penalty to encourage cooperation in order to save public resources is to regard the latter as promoting, rather than detracting from, the deterrent purpose of a penalty. In Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317, Bromwich J observed at [52] that cooperation frees up the resources of a regulator to take deterrence action elsewhere, and considered that discounting a penalty to encourage such cooperation falls squarely within Pattinson (HC).

90    In Fair Work Ombudsman (formerly Australian Building and Construction Commissioner) v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) (No 2) [2023] FCA 13, Katzmann J held that the maximum penalty was not called for in view of the Union’s cooperation with the regulator and its admissions of wrongdoing. Her Honour considered that, “[t]he relatively early admissions spared the regulator the costs of a trial, freeing up its resources to increase the chances that other contraveners will be detected and brought before the courts, which has the effect of increasing deterrence”, citing Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993 at [53] and Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818; (2010) 198 IR 312 at [19].

91    Against this, it may be argued that while reducing a penalty to encourage cooperation in order to save public resources is directly inconsistent with deterring the contravenor and others from committing future contraventions of a like kind, any countervailing deterrent effect is quite indirect, so that, on balance, applying such discounting would detract from the deterrent purpose of imposing a penalty.

92    In any event, reconciling the discounting of penalties for the utilitarian value of admissions with Pattinson (HC) does not ultimately matter for present purposes. The Full Court in Pattinson (FFC) allowed the appeal on two grounds, the second of which was that the primary judge erred in determining that the contraveners, “should not receive any material discount on penalty by reason of their admissions and co-operation rendering a trial unnecessary”. In Pattinson (HC), Edelman J observed at [119]–[120] that special leave to appeal on the second ground had been refused. His Honour indicated that the consequence was that there was no dispute before the High Court that the primary judge had erred by imposing penalties without applying the material discount for cooperation to which the respondents were entitled.

93    Accordingly, Pattinson (FFC) requires that the utilitarian value of admissions, even unaccompanied by contrition, must be taken into account and may operate to reduce the penalty that would otherwise have been imposed.

Which of the Union’s previous contraventions of industrial laws can be taken into account?

94    The second issue of legal principle in dispute concerns which of the Union’s past contraventions of industrial laws can be taken into account in assessing the appropriate penalty or penalties for its contraventions.

95    The appellants submit that the plurality in Pattinson (HC) was careful to emphasise at [9]–[10], [41] and [61] that the penalties imposed must be no more than reasonably necessary to deter “contraventions of a like kind” by the contraveners and others, not to deter contraventions of industrial laws generally. They submit that the plurality’s references to contraventions “of a like kind” were to contraventions of the particular kind considered in that case, namely, contraventions of the general protections provisions of the Act premised on or flowing from the Union’s continued deployment of an unlawful “no ticket no start” policy.

96    The appellants’ ultimate submission appears to be that since the purpose of a penalty is only to deter future contraventions “of a like kind”, only past contraventions “of a like kind”, can be taken into account in determining the appropriate deterrent penalty. The submission continues that it would be an error to lump the entirety of the Union’s record of past contraventions into an undivided whole in assessing the penalty without considering which, if any, of those past contraventions were pertinent to determining penalties to deter future contraventions “of a like kind”. The appellants have not, however, offered any submissions as to which of its contraventions come within that category, or how it is to be determined which of them do.

97    The respondent submits that in Pattinson (HC), the plurality used the phrase “contraventions of a like kind” in a broad way to refer to contraventions of the same legislation, subject to the exclusion of contraventions that have not arisen as a result of deliberateness or an ongoing strategy of non-compliance. The respondent submits that the phrase does not require that the prior contravention be of the same provision, and does not require a close analysis of the relevant facts making up the contravention. The respondent argues that Pattinson (HC) makes it clear that a court’s analysis of past contraventions need go no further than accepting the Union’s long history of recidivism and disregard for the industrial legislation and taking this into account.

98    In Pattinson (HC), the plurality held at [9]:

Under the civil penalty regime provided by the Act, the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act. In that context, the penalties fixed by the primary judge were appropriate because they were no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by Mr Pattinson, the CFMMEU or others. They represented a reasonable assessment of what was necessary to make the continuation of the CFMMEU’s non-compliance with the law, amply demonstrated by the history of its contraventions, too expensive to maintain.

(Emphasis added.)

99    The plurality continued at [10]:

…What is required is that there be “some reasonable relationship between the theoretical maximum and the final penalty imposed”. That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: the deterrence of future contraventions of a like kind by the contravenor and by others.

(Emphasis added.)

100    The parties’ submissions raise two related issues. The first concerns the width of the phrase “contraventions of a like kind”. The second concerns which prior contraventions of statutory provisions can inform the assessment of a penalty that is reasonably necessary to deter future contraventions of a like kind.

101    The plurality in Pattinson (HC) did not explain what was meant by contraventions “of a like kind”. The phrase was apparently adopted from Veen v The Queen (No 2) (1988) 164 CLR 465 at [477]. The parties have not referred to any authorities which have considered the width of the phrase.

102    The plurality’s explanation in Pattinson (HC) of the purpose of a civil penalty at [10] limits an appropriate penalty to one that is “reasonably necessary” to deter future contraventions “of a like kind”. These limitations reflect the necessity for a rational and sufficient connection between the penalty, the contravention and the potential conduct being deterred. It would be an arbitrary exercise of power to impose a penalty in order to deter future conduct unrelated to the contravention before the court.

103    The view taken in Pattinson (HC) that what must be deterred are future contraventions of a like kind indicates that deterrence is not confined to future contraventions of the same kind. The plurality at [61] described the considerations most significant to deterrence in that case as the Union’s determination and financial ability to adhere to its industrial strategy “in defiance of the law”. The plurality did not confine the phrase “contraventions of a like kind” to contraventions of the particular provision contravened in that case. In Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263, Katzmann J at [27] considered that the plurality was referring to further contraventions of laws of a similar kind to the contraventions admitted or proved in the particular case.

104    What will amount to future contraventions “of a like kind” from which a contravener must be deterred must depend upon the circumstances of the case, including the nature of the conduct involved in the contravention and the statutory provision that was contravened. It may also depend upon circumstances personal to the contravener, including whether the contravener’s conduct is part of a strategy or plan involving defiance of “the law”, whether defiance of particular types of laws or particular statutory provisions.

105    A contravener’s previous contraventions of statutory provisions of a similar kind may be relevant to the assessment of a penalty that is reasonably necessary to deter future contraventions “of a like kind”. In Veen (No 2), the plurality held at 477:

…[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind…

106    In Pattinson (HC), the High Court at [16] and [38]-[41] confirmed that notions of retribution, denunciation and rehabilitation, as well as proportionality (other than where that term is understood to refer to a penalty that strikes a reasonable balance between deterrence and oppressive severity), have no part to play in the assessment of civil penalties. Nevertheless, the analysis in Veen (No 2) of the relationship between a history of offending and the need to deter the offender and others from further offending of a like kind has relevance to the assessment of civil penalties. In particular, an antecedent history of contraventions is relevant to show whether the instant offence is an uncharacteristic aberration, or whether the contravener’s commission of the instant offence manifests a continuing attitude of disobedience of the law. A history of past contraventions can inform the assessment of a level of penalty adequate to deter the contravener and others from committing further contraventions of a like kind. As the plurality pointed out in Pattinson (HC) at [43], repeated contraventions may demonstrate the failure of previous penalties to have any deterrent effect.

107    The respondent submits that Pattinson (HC) was determined on the basis that the Union had a general strategy of choosing to pay a penalty in preference to obeying the law, relying on the plurality at [50]:

Where a contravention is an example of adherence to a strategy of choosing to pay a penalty in preference to obeying the law, the court may reasonably fix a penalty at the maximum set by statute with a view to making continued adherence to that strategy in the ongoing conduct of the contravener’s affairs as unattractive as it is open to the court reasonably to do.

108    I do not accept the respondent’s submission that the plurality was referring specifically to the Union in this passage. The plurality seemed to indicate that, in some cases, a contravener may have a single strategy of general and deliberate defiance of law such that any potential future deliberate contraventions of related laws would fall within the description of “future contraventions of a like kind”.

109    I accept the appellants’ submission that the plurality’s consideration of the penalties reasonably necessary to deter contraventions “of a like kind” proceeded by reference to contraventions of the Act premised on or flowing from the Union’s continued deployment of an unlawful “no ticket no start” policy. That was made clear at [61]. The plurality’s approach is consistent with the necessity for an adequate connection between the circumstances of the instant contravention and deterrence of contravening conduct that may occur in the future.

110    The respondent has not attempted to demonstrate, either by reference to evidence or forensic analysis of the Union’s past contraventions, that the Union has a general policy of deliberate defiance of any or all or industrial laws whenever the Union considers that it is in its interests to do so, such that any and all future contraventions of industrial laws will necessarily fall within the description of, “future contraventions of a like kind”. Accordingly, I will not determine the appropriate penalty on the basis of what is reasonably necessary to deter the Union from engaging in deliberate contraventions of any and all industrial laws. It has not been demonstrated that all of the Unions’ past contraventions of industrial laws will necessarily be relevant to determining the appropriate penalties in the present case.

111    The Union contravened s 500 of the Act by one of its officials and one of its employees acting in an improper manner when exercising, or seeking to exercise, rights in accordance with Part 3–4. It is necessary to impose penalties on the Union reasonably necessary to deter future contraventions “of a like kind”. These include prospective contraventions of s 500 involving the Union’s officials or employees deliberately engaging in improper conduct.

112    The Union’s history demonstrates that the instant contraventions manifest a continuing attitude of disobedience of s 500 of the Act. The respondent relies upon a schedule summarising the Union’s past contraventions of industrial laws. The Union disputes the relevance of some unspecified contraventions, but has not disputed the accuracy of the schedule. The schedule demonstrates that on some 35 separate occasions prior to the present contraventions, the Union contravened s 500 by its officials or employees acting in an improper manner. The Union’s history of contraventions of s 500 demonstrates that the penalties imposed in the past were not effective to deter the Union from committing the present contraventions. The Union’s prior contraventions of s 500 are, accordingly, relevant to determining what penalties are appropriate to deter the Union from contravening that provision in the future.

Whether two judgments since the hearing before the primary judge determining that Mr Blakeley previously contravened the Act can be take into account

113    Since the primary judgement on 3 February 2022, Mr Blakeley has twice been penalised for contraventions of s 500 of the Act which occurred on occasions before the instant contravention of 5 November 2020.

114    First, on 11 March 2022, in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FedCFamC2G 156, Mr Blakeley was found to have contravened s 500 on 30 April 2020. Mr Blakeley had entered exclusion zones without authorisation and stood behind concrete trucks, blocking the delivery of concrete to pumps. He thereby intentionally hindered and obstructed persons at the site and acted in an improper manner. A pecuniary penalty of $7,000 was imposed upon Mr Blakeley for that contravention.

115    Second, in ABCC v CFMMEU (Boggo Road Cross River Rail Case) [2022] FedCFamC2G 574, Mr Blakeley was found to have contravened s 500 on 15 April 2020. On that occasion, Mr Blakeley acted improperly including by refusing to produce his entry permit, breaching the occupational health and safety requirements, acting contrary to instructions of the occupier by entering the construction area of the site unaccompanied, and standing in the path of a truck to delay it from proceeding down a road, acting aggressively and making an offensive comment. A pecuniary penalty of $12,600 upon Mr Blakeley.

116    The respondent submits that the appellate court’s task of re-determining a civil penalty is flexible enough to take into account new material where it is necessary to ensure that the penalty achieves the purpose of promoting the public interest in compliance by deterring further contraventions. The respondent submits the Court should not close its eyes to the fact that Mr Blakeley committed two prior contraventions.

117    The appellants ultimately accept that the recent findings of Mr Blakeley’s further contraventions may be taken into account, and may demonstrate that his contravention in the present case was not an uncharacteristic aberration. The appellants submit, however, that these contraventions do not bear upon his attitude at the time of the instant contraventions as they had not been the subject of curial sanction, and are, for that reason, deserving of minimal weight.

118    In Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2), the Full Court observed at [124]:

In a criminal proceeding, an appellate court is required to form its own view of the appropriate sentence when resentencing. The appellate court’s determination of the appropriate sentence is usually made on the basis of the material before the sentencing judge and the primary judge’s unchallenged factual findings A similar approach is taken to resentencing in a pecuniary penalty proceeding.

(Citations omitted.)

119    In Betts v The Queen (2016) 258 CLR 420, the High Court held at [2] that, as a general rule, the appellate court’s assessment of whether some other sentence is warranted is made on the material before the sentencing court and any relevant evidence of the offender’s progress towards rehabilitation since the sentencing hearing, subject to the receipt of new evidence where it is necessary to do so in order to avoid a miscarriage of justice. In this case, the respondent seeks to rely upon recent judgments rather than fresh evidence.

120    In R v McInerney (1986) 42 SASR 111 at 113, King CJ observed:

Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner’s record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record ... The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.

(Citations omitted.)

121    In Pattinson (HC), Edelman J, in the course of considering whether the High Court should exercise the penalty discretion, observed at [121], “it would surely be highly relevant in the re-exercise of the discretion to know whether the CFMMEU had committed any similar contraventions in the three years since the contraventions in this case”. That observation has equal force in respect of similar contraventions committed but not proven at the time of the first instance hearing, but established by a judgment by the time of the appellate court’s fresh exercise of the penalty discretion.

122    As the appellants now accept, the recent findings of Mr Blakeley’s contraventions of s 500 of the Act on 15 and 30 April 2020 may be taken into account, and are relevant to demonstrating that his contravention in the present case was not an uncharacteristic aberration. The recent contraventions are relevant to the determination of the appropriate penalty reasonably necessary to deter him from contraventions of the same kind in the future.

123    The judgments recording Mr Blakeley’s contraventions of 15 and 30 April 2020 may be considered. It is relevant to observe that the penalties imposed by those judgments were not delivered until after the hearing before the primary judge. As was indicated by King CJ in R v McInery, these prior contraventions have less significance than if he had been penalised for them prior to the instant contravention.

124    The appellants submit that Mr Blakeley’s contraventions of 15 and 30 April 2020 do not bear upon his attitude at the time of the instant contraventions as they had not been the subject of curial sanction, and are, for that reason, deserving of minimal weight. The appellants make that submission in reliance upon ABCC v CFMMEU (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 at [72], where Bromberg J accepted that a contravention committed after the instant contravention may be taken into account, but could not reliably say much about the contravener’s continuing attitude of disobedience of the law at the time of the commission of the instant contravention. I do not accept that the present case, which concerns contraventions committed before the instant contravention, is comparable. Mr Blakeley’s contraventions of 15 and 30 April 2020 show a continuing attitude of disobedience of the law which demonstrates a need to impose a greater penalty than otherwise, which deters him and other prospective contraveners from committing further offences of a like kind.

Assessment of the appropriate penalties

125    As has been discussed, Mr Blakely admitted, and the primary judge found, that he contravened s 500 of the Act by acting in an improper manner by:

(a)    entering the site without giving 24 hours written notice in breach of s 487 of the Act;

(b)    entering and remaining on the site in circumstances where he had no lawful basis to do so;

(c)    failing to comply with site’s occupational health and safety requirements that prohibited unauthorised access and required visitors to report to the site office;

(d)    entering and remaining on the site in direct contradiction of Lendlease’s request to conduct the meeting off-site;

(e)    attending the meeting which was not authorised to be held on site; and

(f)    facilitating the entry of the group onto the site in circumstances where he knew that they were not authorised to be on the site.

126    Mr Ravbar admitted, and the primary judge found, that he contravened s 500 of the Act by acting in an improper manner by engaging in the conduct described at (a) – (e) of the preceding paragraph.

127    The Union admitted, and the primary judge found, that the Union was “involved in” the conduct of Mr Blakeley and Mr Ravbar, within s 550(2) of the Act, and was thereby taken to have engaged in two contraventions of s 500 of the Act.

128    An aspect of improper conduct admitted by the appellants and found by the primary judge, was that Mr Blakeley and Mr Ravbar entered and remained on the site in direct contradiction of Lendlease’s request to conduct the meeting off-site. Section 486 of the Act requires, in effect, that permit holder conduct interviews or hold discussions authorised under s 484 in rooms or areas of the premises agreed with the occupier, but if agreement cannot be reached, the permit holder may conduct the interview or hold the discussions in a meal room provided by the employer. No provision allows an occupier to dictate that such a meeting must be held off-site. The parties were unable to explain why Mr Blakeley’s and Mr Ravbar’s failure to accede to Lendlease’s request to conduct the meeting off-site amounted to improper conduct. I do not propose to place any weight on that aspect of their conduct.

129    In Pattinson (HC), the plurality accepted that the nature and gravity of the conduct constituting the contravention remains relevant to the assessment of a civil penalty appropriate to deter future contraventions of a like kind. The plurality referred with approval at [18] to a list of relevant factors compiled by French J in Trade Practices Commission v CSR Ltd, which include the nature and extent of the contravening conduct, the amount of loss or damage caused, and the circumstances in which the conduct took place, describing these factors at [19] as matters pertaining to the character of the contravening conduct. In Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Richard Crookes Constructions Pty Ltd [2022] FCA 992, Wigney J observed at [164] that, such factors are only relevant to the extent they relate to deterrence. His Honour also observed that, “[a]s 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”.

130    The appellants’ conduct must be regarded as serious. The contraventions can be seen as undermining the scheme of Part 3–4 of the Act, which aims to balance the interests of occupiers of premises, employers, unions and employees in respect of the rights of entry to premises: see Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15 at [8]. Mr Blakeley and Mr Ravbar, despite having no entitlement to enter, defied the occupier’s insistence that they not enter the site. A particularly serious aspect of Mr Blakeley’s conduct was his facilitation of the entry of a group of persons who were not authorised to be on the site.

131    The appellants submit that the seriousness of their offending is tempered by the temporally confined nature of the contraventions; and that the contraventions caused no economic harm or any disruption or inconvenience to Lendlease, given that Lendlease had already agreed to allow employees to attend a meeting with the Union. That submission can be accepted.

132    The appellants submit that the contraventions did not involve the intentional hindrance or obstruction of any person, but that cannot be accepted in respect of Mr Blakeley’s conduct. Mr Blakeley admitted that he stepped forward towards a Lendlease foreman who was standing at the gate opening, causing the foreman to step backwards, and then stepped into the opening and stood with his arms outstretched to form a barrier, allowing the accompanying group of people to walk through.

133    The appellants also submit that their contraventions did not imperil the safety or wellbeing of any person. That may be so, but the matter must be seen against the background of Mr Blakeley’s and Mr Ravbar’s admitted failure to comply with the site’s occupational health and safety requirements which prohibited unauthorised access.

134    The appellants further submit the seriousness of their offending is limited by the fact that the meeting occurred in what would have been the default room for discussions had Mr Blakeley and Mr Ravbar exercised their rights in accordance with s 484 of the Act. However, they had no entitlement to enter the site or conduct a meeting on the site in the absence of having provided the required notice. I cannot see that the fact they conducted their unauthorised meeting in the room where they might have been entitled to hold it had they acted lawfully reduces the gravity of their offending.

135    While the appellants’ contraventions should be regarded as serious, it must be acknowledged that these are far from most serious examples of possible contraventions of s 500 of the Act. However as Pattinson (HC) makes clear, the maximum penalty is not reserved for the most serious examples.

136    In Pattinson (HC), the plurality also observed at [67] that where it is evident that a contravention has occurred as a matter of industrial strategy pursued without regard for the law, it is open to a court to reasonably conclude that no penalty short of the maximum would be appropriate. The overwhelming factor affecting the assessment of the appropriate deterrent penalty is that the Union’s contraventions manifest a continuing attitude of disregard for its obligations under s 500 of the Act. On 35 separate occasions prior to the present contraventions, the Union contravened s 500 through its officials or employees in acting in an improper manner. That history demonstrates that the penalties imposed in the past were not effective to deter the Union from committing the present contraventions.

137    The respondent submitted before the primary judge, by reference to findings made in other cases, that the Union is a large, prominent and influential national union that is both cash and asset rich and has sufficient means to pay any penalties imposed. This description has not been disputed by the Union. Its financial capacity to withstand the imposition of penalties consequent upon its past contraventions of s 500 is relevant to the assessment of the appropriate penalty: Pattinson (HC) at [61].

138    It is necessary to consider the “course of conduct” principle. In Pattinson (HC), the plurality accepted at [45] that, “concepts such as totality, parity and course of conduct may assist in the assessment of what may be considered reasonably necessary to deter further contraventions of the Act”. In Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 194 IR 461, Middleton and Gordon JJ explained at [39] that the course of conduct 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”. There may be, for example, a lesser need for deterrence where a contravener has committed two contraventions on a single occasion which involve essentially the same “criminality”, than where a contravener has committed two distinct contraventions that are quite separate in time and circumstance.

139    In Transport Workers’ Union of Australia v Registered Organisations Commissioner [No 2] [2018] FCAFC 203, the Full Court held in respect of the course of conduct principle that, “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”. However, as Middleton and Gordon JJ explained in Cahill, even if the contraventions are properly characterised as arising from a single course of conduct, a judge is not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of the contraventions: see also Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 357 ALR 55 at [235].

140    Although the Union committed two contraventions, the primary judge found that the contraventions occurred in a single course of conduct. That finding has not been challenged by the respondent.

141    But for the course of conduct principle, I would have applied the maximum penalty of $66,600 for each of the Union’s contraventions, given the primacy of the need for deterrence of the Union from committing contravention of a like kind in the future. However, there is such an interrelationship between the conduct of Mr Blakeley and Mr Ravbar constituting the two contraventions such that the contraventions can be described as occurring in a single course of conduct. The penalties should be reduced to some extent to avoid punishing the Union twice for overlapping conduct.

142    I consider the imposition of only a single penalty of the maximum amount would not adequately reflect the need for deterrence. The appropriate penalties, subject to taking into account the utilitarian value of the Union’s admissions, are two penalties of $46,620 each, being 70% of the maximum of $66,600 at the relevant time.

143    I will also discount the maximum penalty by 15% to take into account the utilitarian value of the Union’s admissions. Accordingly, two penalties of $36,630 each will be imposed on the Union. I am satisfied that the overall penalty is not out of proportion to the overall contravening and is just and appropriate.

144    In respect of Mr Blakeley, his contravention of s 500 of the Act, seen against the background of earlier contraventions on 15 and 30 April 2020, manifests a continuing attitude of disregard for his obligations under that provision. However, penalties had not been imposed upon Mr Blakeley by the time he committed the instant contravention, so it cannot be said that penalties for the earlier contraventions have had no deterrent effect. He was not a senior employee of the Union. I note that the circumstances of the instant contravention, although serious, were not as serious as the contraventions of 15 and 30 April 2020. It is appropriate to impose a penalty of 60% of the maximum of $13,320, but to apply a reduction of 15% to take into account the utilitarian value of his admissions. Accordingly, a penalty of $6,000 will be imposed on Mr Blakeley.

145    In 1999, Mr Ravbar committed a contravention of s 298P(3)(a) of the Workplace Relations Act 1996 (Cth). His contravening conduct involved Mr Ravbar seeking to have an employee removed from a work-site because that employee had failed to join the Union. In view of the length of time that had passed, the instant contravention can be regarded as an aberration rather than as manifesting a continuing attitude of disregard for his obligations under the Act. It must be also taken into account that the need for specific deterrence is reduced because he no longer holds a permit under Part 3-4 and seems unlikely to seek to exercise rights under that Part 3-4 in the foreseeable future.

146    However, it must also be taken into account that Mr Ravbar occupies a position of considerable seniority in the Union, as the National Vice President of the Union’s National Executive Committee and Secretary of the Union’s Construction and General Division – Queensland and Northern Territory Divisional Branch. There is a greater need for general deterrence where the contravention was committed by a leader within the Union, who sets an example for others of lesser seniority.

147    It is appropriate to impose upon Mr Ravbar a penalty of 50% of the maximum of $13,320, but also apply a reduction of 15% to take into account the utilitarian value of his admissions. Accordingly, a penalty of $4,660 will be imposed on Mr Blakeley.

Summary

148    The respondent has conceded three of the applicants’ grounds of appeal. I am satisfied that the concessions were properly made. It is necessary to set aside the orders of imposing pecuniary penalties and to re-determine the appropriate penalties.

149    It will be ordered that the Union pay a penalty of $36,630 for each of its two contraventions of s 500 of the Act, a total of $73,260.

150    It will be ordered that Mr Blakeley pay a penalty of $6,000 for his contravention of s 500 of the Act.

151    It will be ordered that Mr Ravbar will be ordered to pay a penalty of $4,660 for his contravention of s 500 of the Act.

Associate:    

Dated:    10 February 2023