Federal Court of Australia
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) [2023] FCA 219
ORDERS
Applicant | ||
AND: | CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent KURT PAULS Second Respondent BEAU SEIFFERT (and others named in the Schedule) Third Respondent | |
DATE OF ORDER: |
PENAL NOTICE
TO: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION, KURT PAULS, BEAU SEIFFERT, TE ARANUI ALBERT, BLAKE HYNES, LUKE GIBSON, MATTHEW PARFITT AND ROYCE KUPSCH IF YOU (BEING THE PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. |
In these Orders:
(i) “FW Act” means the Fair Work Act 2009 (Cth).
(ii) “Federal entry permit” means an entry permit issued by the Fair Work Commission to an official of an organisation under section 512 of the FW Act.
(iii) “Site” means the section of the Bruce Highway between Caloundra Road and the Sunshine Coast Motorway.
(iv) “State or Territory OHS right” means a right to enter premises under section 81(3) of the Work Health and Safety Act 2011 (Qld) (WHS Act), being a State or Territory OHS right within the meaning of section 494(2) of the FW Act.
THE COURT ORDERS THAT:
1. The first respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), pay pecuniary penalties totalling $85,000.00.
2. The second respondent, Mr Kurt Pauls, pay pecuniary penalties totalling $30,000.00.
3. The third respondent, Mr Beau Seiffert, pay pecuniary penalties totalling $25,000.00.
4. The fourth respondent, Mr Te Aranui Albert, pay pecuniary penalties totalling $3,500.00.
5. The fifth respondent, Mr Blake Hynes, pay pecuniary penalties totalling $15,000.00.
6. The sixth respondent, Mr Luke Gibson, pay pecuniary penalties totalling $7,000.00.
7. The seventh respondent, Mr Matthew Parfitt, pay pecuniary penalties totalling $10,000.00.
8. The eighth respondent, Mr Royce Kupsch, pay pecuniary penalties totalling $3,500.00.
9. The pecuniary penalties referred to in paragraph 1 above be paid to the Commonwealth of Australia within 28 days.
10. The pecuniary penalties referred to in paragraphs 2 -8 above be paid to the Commonwealth of Australia within 90 days.
11. Each of the second to eighth respondents must pay the penalties imposed upon them by the orders above personally in that each of them individually not, whether before or after the payment of the penalty:
seek to have or encourage the first respondent in any way whatsoever, directly or indirectly, to pay to him or for his financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part; and
accept or receive from the first respondent in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part.
12. There be no order as to costs.
THE COURT DIRECTS THAT:
1. The applicant serve these orders on:
The first respondent in accordance with rule 10.04 of the Federal Court Rules 2011 (Cth); and
Each of the second to eighth respondents in accordance with rule 10.01 of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
INTRODUCTION
1 On 23 October 2019 I delivered judgment in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737 (Liability Judgment). The factual background is set out at [10] – [53] of the Liability Judgment.
2 Relevantly, over the period of 8 March, 9 – 13 April, and 16 – 18 April 2018 the second to eighth respondents contravened Part 3-4 of the FW Act referrable to their entry onto the Project Site. Pursuant to ss 550 and 793 of the FW Act, the first respondent was taken to have engaged in the second to eighth respondents’ conduct and contravened the respective sections of the FW Act.
3 On 7 November 2019 I made declarations, in the form agreed by the parties, giving effect to the reasons in the Liability Judgment. On 10 November 2021 I made orders, by consent, pursuant to r 39.05(f) and (h) of the Federal Court Rules 2011 (Cth) inserting declarations 19(aa) and 24(aa). Those declarations, in their final form, are as follows:
The Second Respondent – Kurt Pauls – primary liability
1. On each of 8 March 2018, 9 April 2018, 10 April 2018, 11 April 2018, 13 April 2018, 16 April 2018, 17 April 2018 and 18 April 2018, the second respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of the FW Act, contravened section 494(1) of that Act when he exercised a State or Territory OHS right in circumstances where he was not a permit holder within the meaning of the FW Act.
2. In respect of the second respondent’s contraventions of section 494(1) of the FW Act referred to in the previous declaration, the first respondent:
(a) engaged in the second respondent’s conduct by operation of section 793(1) of that Act and thereby participated in each contravention;
(b) is taken by operation of section 783(2) of that Act, to have known of all of the essential facts constituting each contravention;
(c) was accordingly knowing concerned in each contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 494(1) of the FW Act on each of 8 March 2018, 9 April 2018, 10 April 2018, 11 April 2018, 13 April 2018, 16 April 2018, 17 April 2018 and 18 April 2018.
The Third Respondent - Beau Seiffert
3. On each of 8 March 2018, 9 April 2018, 10 April 2018, 11 April 2018 (twice), 12 April 2018, 16 April 2018 and 18 April 2018, the third respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 497 of the FW Act by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the Site to produce his Federal entry permit for inspection.
4. In respect of the third respondent’s contraventions of section 497 of the FW Act referred to in the previous declaration, the first respondent:
(a) engaged in the third respondent’s contraventions of section 497 of the FW Act referred to in the previous declaration, the first respondent:
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting each contravention;
(c) was accordingly knowing concerned in each contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 497 of the FW Act on each of 8 March 2018, 9 April 2018, 10 April 2018, 11 April 2018 (twice), 12 April 2018, 16 April 2018 and 18 April 2018.
5. On 10 April 2018, the third respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(a) refusing a request by the occupier of the Site to produce his Federal entry permit for inspection;
(b) refusing requests by the occupier of the Site to wait and not walk around the Site until a superintendent had been called;
(c) subsequently walking around the Site;
(d) refusing requests by the occupier of the Site to leave the Site; and
(e) failing to comply with several requests from the Queensland Police Service to leave the Site.
6. On 11 April 2018, the third respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(a) refusing a request by the occupier of the Site to produce his Federal entry permit for inspection; and
(b) failing to comply with an occupational health and safety requirement of the Site, imposed by the occupier, by walking around the Site without supervision or accompaniment by an inducted Site representative, despite requests that this not occur.
7. On 12 April 2018, the third respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(a) refusing a request by the occupier of the Site to produce his Federal entry permit for inspection;
(b) refusing a request by the occupier of the Site to leave the Site;
(c) failing to comply with an occupational health and safety requirement of the Site, imposed by the occupier, by walking around the Site without supervision or accompaniment by an inducted Site representative; and
(d) failing to comply with requests from the Queensland Police Service to leave the Site.
8. On 16 April 2018, the third respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(a) refusing a request by the occupier of the Site to produce his Federal entry permit for inspection;
(b) subsequently entering and walking around parts of the Site; and
(c) failing to comply with requests from the Queensland Police Service to leave the Site.
9. In respect of the third respondent’s contraventions of section 500 of the FW Act referred to in declarations 5-8 above, the first respondent:
(a) engaged in the third respondent’s conduct by operation of section 793(1) of that Act and thereby participated in each contravention;
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting each contravention;
(c) was accordingly knowing concerned in each contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 500 of the FW Act on each of 10 April 2018, 11 April 2018, 12 April 2018 and 16 April 2018.
The Fourth Respondent – Te Aranui Albert
10. On 8 March 2018, the fourth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 497 of the FW Act by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the Site to produce his Federal entry permit for inspection.
11. In respect of the fourth respondent’s contravention of section 497 of the FW Act referred to in the previous declaration, the first respondent:
(a) engaged in the fourth respondent’s conduct by operation of section 793(1) of that Act and thereby participated in the contravention;
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting the contravention;
(c) was accordingly knowing concerned in the contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 497 of the FW Act on 8 March 2018.
The Fifth Respondent – Blake Hynes
12. On each of 9 April 2018, 11 April 2018 (twice) and 12 April 2018, the fifth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 497 of the FW Act by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the Site to produce his Federal entry permit for inspection.
13. In respect of the fifth respondent’s contraventions of section 497 of the FW Act referred to in the previous declaration, the first respondent:
(a) engaged in the fifth respondent’s conduct by operation of section 793(1) of that Act and thereby participated in each contravention;
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting each contravention;
(c) was accordingly knowing concerned in each contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 497 of the FW Act on each of 9 April 2018, 11 April 2018 (twice) and 12 April 2018.
14. On 11 April 2018, the fifth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(a) refusing a request by the occupier of the Site to produce his Federal entry permit for inspection;
(b) failing to comply with an occupational health and safety requirement of the Site, imposed by the occupier, by walking around the Site without supervision or accompaniment by an inducted Site representative, despite requests that this not occur; and
(c) failing to comply with a request by the occupier of the Site that he not pull up in a vehicle, get out and stand around on a live access haul road.
15. On 12 April 2018, the fifth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(a) refusing a request by the occupier of the Site to produce his Federal entry permit for inspection;
(b) refusing a request by the occupier of the Site to leave the Site;
(c) failing to comply with an occupational health and safety requirement of the Site, imposed by the occupier, by walking around the Site without supervision or accompaniment by an inducted Site representative; and
(d) failing to comply with requests from the Queensland Police Service to leave the Site.
16. In respect of the fifth respondent’s contraventions of section 500 of the FW Act referred to in declarations 14-15 above, the first respondent:
(a) engaged in the fifth respondent’s conduct by operation of section 793(1) of that Act and thereby participated in each contravention;
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting each contravention;
(c) was accordingly knowing concerned in each contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 500 of the FW Act on each of 11 April 2018 and 12 April 2018.
The Sixth Respondent – Luke Gibson
17. On each of 11 April 2018 and 12 April 2018, the sixth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 497 of the FW Act by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the Site to produce his Federal entry permit for inspection.
18. In respect of the sixth respondent’s contraventions of section 497 of the FW Act referred to in the previous declaration, the first respondent:
(a) engaged in the sixth respondent’s conduct by operation of section 793(1) of that Act and thereby participated in each contravention;
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting each contravention;
(c) was accordingly knowing concerned in each contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 497 of the FW Act on each of 11 April 2018 and 12 April 2018.
19. On 11 April 2018, the sixth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(aa) refused a request by the occupier of the Site to produce his Federal entry permit for inspection;
(a) refusing a request by the occupier of the Site to leave the Site;
(b) failing to comply with an occupational health and safety requirement of the Site, imposed by the occupier, by walking around the Site without supervision or accompaniment by an inducted Site representative, despite requests that this not occur; and
(c) failing to comply with a request by the occupier of the Site that he not pull up in a vehicle, get out and stand around on a live access haul road.
20. On 12 April 2018, the sixth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(a) refusing a request by the occupier of the Site to produce his Federal entry permit for inspection;
(b) refusing a request by the occupier of the Site to leave the Site;
(c) failing to comply with an occupational health and safety requirement of the Site, imposed by the occupier, by walking around the Site without supervision or accompaniment by an inducted Site representative; and
(d) failing to comply with requests from the Queensland Police Service to leave the Site.
21. In respect of the sixth respondent’s contraventions of section 500 of the FW Act referred to in declarations 19-20 above, the first respondent:
(a) engaged in the sixth respondent’s conduct by operation of section 793(1) of that Act and thereby participated in each contravention;
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting each contravention;
(c) was accordingly knowing concerned in each contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 500 of the FW Act on each of 11 April 2018 and 12 April 2018.
The Seventh Respondent – Matthew Parfitt
22. On each of 13 April 2018 and 17 April 2018, the seventh respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 497 of the FW Act by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the Site to produce his Federal entry permit for inspection.
23. In respect of the seventh respondent’s contraventions of section 497 of the FW Act referred to in the previous declaration, the first respondent:
(a) engaged in the seventh respondent’s conduct by operation of section 793(1) of that Act and thereby participated in each contravention;
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting each contravention;
(c) was accordingly knowing concerned in each contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 497 of the FW Act on each of 13 April 2018 and 17 April 2018.
24. On 13 April 2018, the seventh respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(aa) refused a request by the occupier of the Site to produce his Federal entry permit for inspection;
(a) refusing numerous requests by the occupier of the Site to leave the Site; and
(b) failing to comply with an occupational health and safety requirement of the Site, imposed by the occupier, by walking around the work area on the Site and not remaining with a vehicle.
25. On 17 April 2018, the seventh respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(a) refusing requests by the occupier of the Site to produce his Federal entry permit for inspection;
(b) refusing requests by the occupier of the Site to leave the Site;
(c) entering a work area, causing a representative of the occupier of the Site to instruct workers to stop work because the representative was concerned that the seventh respondent's presence would create a safety hazard; and
(d) failing to comply with requests from the Queensland Police Service to leave the Site.
26. In respect of the seventh respondent’s contraventions of section 500 of the FW Act referred to in declarations 24-25 above, the first respondent:
(a) engaged in the seventh respondent’s conduct by operation of section 793(1) of that Act and thereby participated in each contravention;
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting each contravention;
(c) was accordingly knowing concerned in each contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 500 of the FW Act on each of 13 April 2018 and 17 April 2018.
The Eighth Respondent – Royce Kupsch
27. On 17 April 2018, the eighth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 497 of the FW Act by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the Site to produce his Federal entry permit for inspection.
28. In respect of the eighth respondent’s contravention of section 497 of the FW Act referred to in the previous declaration, the first respondent:
(a) engaged in the eighth respondent’s conduct by operation of section 793(1) of that Act and thereby participated in the contravention;
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting the contravention;
(c) was accordingly knowing concerned in the contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 497 of the FW Act on 17 April 2018.
29. On 17 April 2018, the eighth respondent, an employee of the first respondent acting on its behalf and within the scope of his authority within the meaning of section 793(1) of FW Act, contravened section 500 of the FW Act when attending at and entering the Site and when exercising a State or Territory OHS right, by acting in an improper manner by:
(a) refusing requests by the occupier of the Site to produce his Federal entry permit for inspection;
(b) refusing requests by the occupier of the Site to leave the Site;
(c) entering a work area, causing a representative of the occupier of the Site to instruct workers to stop work because the representative was concerned that the seventh respondent's presence would create a safety hazard; and
(d) failing to comply with requests from the Queensland Police Service to leave the Site.
30. In respect of the eighth respondent’s contravention of section 500 of the FW Act referred to in the previous declaration, the first respondent:
(a) engaged in the eighth respondent’s conduct by operation of section 793(1) of that Act and thereby participated in the contravention;
(b) is taken by operation of section 793(2) of that Act, to have known of all of the essential facts constituting the contravention;
(c) was accordingly knowing concerned in the contravention within the meaning of section 550 of that Act; and
(d) thereby itself contravened section 500 of the FW Act on 17 April 2018.
The Second Respondent – Kurt Pauls – accessorial liability
31. In respect of the contraventions of sections 497 and 500 of the FW Act referred to in declarations 3 (except for that on 12 April 2018), 5, 6, 8, 10, 12 (except for that on 12 April 2018), 14, 17 (except for that on 12 April 2018), 19, 22, 24, 25, 27 and 29 above, the second respondent:
(a) was in the presence of and was accompanying each other individual contravener at the time of their contraventions and was prosecuting the claim that the production of Federal entry permits by any of them was not necessary, thereby participating in each contravention in each case;
(b) knew of all of the essential facts constituting each contravention in each case;
(c) was accordingly knowing concerned in each contravention within the meaning of section 550 of that Act; and
(d) thereby himself contravened sections 497 and 500 of the FW Act on each occasion.
4 The issue that remains for determination before the Court is the imposition of penalty. I note that at the time of the hearing the applicant no longer pressed permanent injunctions given that the Project had reached practical completion, or was very near practical completion.
EVIDENCE
5 On the issue of penalty, the respondents relied on the following affidavit material:
Affidavit of Mr Royce Kupsch dated 8 October 2021; and
Affidavit of Ms Elyane Palmer dated 8 October 2021.
6 The applicant objected to paras 13, 14, 16 and 17 of Mr Kupsch’s affidavit on the basis of hearsay and/or opinion. These paragraphs were as follows:
13. Since 2012 members of the Branch have relied upon s.81 (3) to assist in the resolution of disputes about workplace health and safety issues.
14. During the period from 2012 until (at least) the commencement of this proceeding in October 2018, both the Branch and the regulator under the WHS Act, currently known as the Office of Industrial Relations, formerly known as Workplace Health and Safety Queensland (Safety Regulator), publicly maintained the following position:
(a) s. 81(3) of the WHS Act did not create a 'State or Territory OHS right' for the purposes of s 494(2) of the FW Act; and
(b) entry to premises under s 81(3) of the WHS Act did not involve the exercise of rights in accordance with Part 3-4 of the Fair Work Act 2009 (Cth) (FW Act),
such that organisers were not required to show entry permits or, in the event they failed to show their entry permits, leave the premises as requested by the occupier. I was aware of the Safety Regulator's position from discussions I had with its representatives as well as from interactions I had on a reasonably regular basis with Inspectors of the Safety Regulator appointed under the WHS Act about disputes concerning entry to premises under s 81 (3).
15. …
16. I was aware from discussions with representatives of the Safety Regulator, including its inspectors, that it regularly gave advice to organisers, including the individual respondents to this proceeding, that was consistent with paragraph 13. Examples include:
(a) There were a few occasions prior to April 2018 when occupiers of workplaces refused to allow representatives of workers to go on site under s.81 (3). On those occasions the Safety Regulator ensured that s.81 (3) was given effect to by expressing the opinion that the occupier ought to allow a representative to go on site.
(b) In March and April of 2018, the Safety Regulator issued Improvement Notices and Infringement Notices under the WHS Act requiring compliance with s.81 (3) (together the Notices).
17. On some, but not all, of the occasions the subject of the Notices, I was informed by representatives of the Safety Regulator, by telephone, that they had been issued. On most occasions I was not given a copy of the Notices. Where I became aware of the Notices, by any means, I communicated the fact that they had been issued and their terms and effect to the relevant organisers of the Branch, including the organisers who are respondents to this proceeding and to whom the Notices related.
7 At the hearing the parties were content for the affidavit of Mr Kupsch to be allowed into evidence on the basis that the Court note the applicant’s objections, and ascribe weight to the evidence as the Court considered appropriate.
8 Section 136 of the Evidence Act 1995 (Cth) permits the Court to limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party; or be misleading or confusing. In my view it is appropriate that the views expressed by Mr Kupsch in those paragraphs be limited to his own state of mind, and accorded limited weight.
9 In summary Mr Kupsch further deposed, at material times:
He was the President and Workplace Health & Safety Coordinator at the CFMMEU Queensland and Northern Territory Branch of the Construction and General Division;
Mr Kupsch held a Diploma of Occupational Health and Safety, a Certificate IV in OH&S and a Certificate IV in Training and Assessment;
Mr Kupsch holds a work health and safety entry permit issued pursuant to the Work Health and Safety Act 2011 (Qld) (WHS Act) and an entry permit pursuant to the FW Act;
Mr Kupsch was a member and Chair of the Construction Industry Sector Standing Committee comprised of representatives of employers, employees and State Governments;
Mr Kupsch understood that:
• Since 2012 members of the Branch relied upon s 81(3) of the WHS Act to assist in the resolution of workplace health and safety disputes; and
• Section 81(3) of the WHS Act did not create a State or Territory Right for the purposes of Part 3-4 of the FW Act.
Mr Kupsch explained to ‘officials’, including the individual respondents in these proceedings, on a ‘regular basis’ that entry under s 81(3) of the WHS Act was not the exercise of a State or Territory OHS right;
In March and April 2018 Improvement Notices and Infringement Notices were issued by the Safety Regulator mandating compliance with s 81(3) of the WHS Act;
Noting,failed appeal of the Liability Judgment to the Full Court, and subsequent refusal by the High Court to grant special leave in respect of the Full Court decision, the Branch had revised its position in relation to entry under s 81(3) of the WHS Act;
On 5 May 2021 Mr Michael Ravbar, Secretary of the Branch, issued a memorandum to all organisers outlining the correct position in relation to entry under s81(3) of the WHS Act and advising a meeting would take place on 6 May 2021 regarding that information;
Once Mr Kupsch knew the correct legal position, he conducted himself accordingly;
Messrs Pauls and Hynes had ceased their employment with the CFMMEU and were employed by the Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland (CFMEUQ).
10 The affidavit of Ms Palmer is brief. In summary, at material times:
Ms Palmer was a lawyer employed by the CFMMEU; and
Mr Albert’s employment with the Victoria-Tasmania Divisional Branch of the Construction and General Division of the CFMMEU came to an end on 14 September 2021.
11 No objection was taken by the applicant to Ms Palmer’s affidavit.
12 The applicant did not file any further material in relation to penalty.
SUBMISSIONS
13 Both parties filed extensive submissions referrable to penalty.
14 The applicant submitted, in summary:
The conduct in question arose from a concerted, coordinated campaign by the CFMMEU over the course of about a month;
The respondents’ “mistaken belief” should not be accepted;
The circumstances of the contraventions were objectively serious;
It can be inferred from the repeated conduct of the CFMMEU in like matters that there was an unwillingness in its membership to comply with the law (which was endorsed at the highest levels of management) and that the CFMMEU had a culture where unlawful conduct was normalised;
The CFMMEU was asset rich, and any penalty should be sufficiently high so as to have a deterrent effect;
Whilst specific deterrence was relevant, it assumed a lower level of importance to the CFMMEU and Mr Albert;
There should be some modest discount afforded to the respondents in relation to their factual admissions at an early stage in the proceedings;
The respondents had not demonstrated any form of contrition or made any apology;
The statutory course of conduct provision in s 557 of the Fair Work Ace did not apply to any of the relevant contraventions. Whilst the common law “course of conduct” principles applied at the penalty fixing stage, they did not reduce the number of contraventions and did not permit the imposition of one penalty for multiple contraventions in a course of conduct;
Repeat contraveners such as the CFMMEU and Mr Pauls should not receive any leniency in the application of the Court’s discretion referable to course of conduct principles;
There should be some account taken regarding the overlap and repetitious nature of the contraventions for the CFMMEU and Mr Pauls;
There would be no “sting” on the individual respondents if personal payment orders were not made;
The respondents’ contention that they had a bona fide right to be on the premises, therefore justifying a lower penalty, was misconceived; and
Having regard to the principles arising from Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13 the penalties to be imposed on the CFMMEU in relation to its contravention of s 500 of the FW Act should be near the statutory maximum.
15 The respondents submitted in summary:
The respondents’ contraventions fell at the bottom end of the scale of seriousness;
The contraventions in question caused no tangible economic loss to the principal contractor of the Project;
The respondents’ contraventions arose from a genuine and reasonably held, but mistaken, belief;
Despite the applicant’s assertion, there was no concerted or coordinated campaign;
The CFMMEU has taken corrective action to rectify this mistaken belief, and therefore principles of specific and general deterrence were of limited weight;
The Court should consider the findings of Rangiah J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Toowoomba Bypass Case) [2021] FCA 1128 in relation to the issue of mistaken belief;
The Court should consider the course of conduct principle in moderating the penalty in line with the objective seriousness of the offending;
The contraventions in question did not involve the hindrance or obstruction of any person;
The respondents (excluding Mr Pauls) entered the Project Site for a bona fide purpose, being matters of work health and safety;
The contraventions of ss 497 and 500 by the individual respondents (with the exception of Mr Albert) in each case comprised the same conduct. The conduct of the individual permit holders in exercising rights under s 81(3) of the WHS Act after refusing to produce their entry permits for inspection resulted in their contraventions of s 497. The improper conduct comprising their respective s 500 contraventions was their continued exercise of the right of entry under s 81(3) after they refused to produce their entry permits; and
In relation to Mr Pauls, his conduct in exercising a right under s 81(3) by entering the Project and engaging in activities of the kind envisaged by s 81(3) of the WHS Act was, in substance, substantially the same as his conduct in being present with the other individual respondents whilst they were exercising rights under s 81(3). The conduct encompassing his s 494(1) contraventions was, viewed in its whole context, substantially the same as his accessorial contraventions. Alternatively the common law principle against double jeopardy should be applied.
CONSIDERATION
16 The general principles relating to the imposition of penalties under s 546 of the FW Act are well known. The task of the Court in arriving at an appropriate penalty is to conduct a balancing exercise taking into account, inter alia, the circumstances of the conduct and the contraveners, mitigating and aggravating factors, and the purpose of the civil pecuniary penalty regime, namely the objective of deterrence: see Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13; Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 at [19]-[22].
17 I will now turn to the assessment of appropriate penalties.
Appropriate penalty
Nature and circumstances of the contravening conduct
18 The circumstances of the contravening conduct are set out at paras [10] - [53] of the Liability Judgment. Relevantly, the contraventions occurred over 9 occasions between 8 March and 18 April 2018, and involved (varying between each respondent) conduct including:
Exercising a State or Territory OHS right whilst not a permit holder;
Refusing a request by the occupier of the Site to produce a Federal Entry Permit for inspection;
Continuing to exercise a State or Territory OHS right after having refused a lawful request to produce a Federal Entry Permit for inspection;
Refusing a request by the occupier to wait and not walk around the Site until a superintendent had been called;
Walking around the Site;
Entering a work area and causing works to cease due to safety concerns;
Refusing requests by the occupier to leave the Site;
Failing to comply with requests from the Queensland Police to leave the Site; and
Failing to comply with the occupational health and safety requirements of the Site, by walking around the Site without supervision.
19 That the applicant did not file any evidence to quantify loss on behalf of Fulton Hogan and Seymour White does not reduce the objective seriousness of the conduct. Similarly, it does not increase the objective seriousness. Plainly however the conduct of the respondents caused disruption on the Project Site, including for example on 17 April 2018 when the presence of Messrs Pauls, Parfitt and Kupsch at Bridge 31 caused works to stop for approximately 2 hours (see Liability Judgment at [104]), and to the extent that the police were called on 12 April, 13 April, 16 April and 17 April 2018 resulting in the various arrests of Messrs Pauls, Parfitt, Kupsch, Seiffert, Gibson and Hynes for trespassing (see paras [36], [40], [44] and [49] of the Liability Judgment). Of course, I note that the allegations of trespass were discontinued on a public interest basis – nonetheless I infer that some degree of disruption occurred at the Project Site.
20 The key issue between the parties is the consideration of the respondents’ purported “mistaken belief”. The applicant submitted that the respondents’ contention of mistaken belief should not be accepted. The applicant submitted that the decision in Powell was “always determinate of the application and operation of s 81(3) of the WHS Act” and therefore the argument of mistaken belief, at its highest, meant that the respondents decided to “take the odds” (cf Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 at [100], [106]). In addition, the applicant submitted that whether or not the respondents were correct in their view of s 81(3), did not explain or give the respondents the right to act improperly after entry.
21 The respondents directed the Court in particular to Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Toowoomba Bypass Case) [2021] FCA 1128. The respondents in that case pleaded “a genuine but mistaken belief that s 81(3) of the [WHS Act] did not create a “State or Territory OHS right” for the purposes of s 494(2) of the FW Act and entry to premises under s 81(3) of the WHS Act did not involve the exercise of rights in accordance with Pt 3–4 of the [FW Act], such that they were not required to show entry permits, or in the event that they fail to show their entry permits, leave the premises as requested by the occupier”. Relevantly, on multiple occasions, the respondents there entered a project site and walked around, notwithstanding that they did not show their entry permits, access to the site was not approved, they were not authorised to be on the site and they were told they needed to leave. Justice Rangiah observed:
61 The respondents contend that at the time of the contraventions, the Union’s understanding was that the power under s 81(3) of the WHS Act was not a “State and Territory OHS right” within s 494(2) of the FW Act; and that, accordingly, a permit was not required when exercising the right under s 81(3) to enter and remain on premises. The Union communicated that position to the individual respondents. The respondents argue that the allegations made in the ASOC (and admitted in the Defence) as to what the individual respondents said at the times of the contraventions demonstrate that they believed they did not need to be permit holders or produce permits.
62 The respondents submit that the Queensland statutory authority responsible for the administration of the WHS Act (the State Authority) shared their understanding that no permit was required when exercising powers under s 81(3) of the WHS Act. The point seems to go to the reasonableness of the respondents’ belief.
63 On 27 March 2018, the State Authority issued an Improvement Notice directed to Mr Sanchez, an employee of the Project Managers. The notice records that, “s 81(3) of the Act grants the organisers in this case the right to enter the premises provided the conditions in s 81 are satisfied, whether or not they have a permit issued under s 171.” It is unclear what was meant by “a permit issued under s 171”, but it may have been intended to refer to a permit issued under s 512 of the FW Act, and the Commissioner did not raise any argument to the contrary. The notice directed Mr Sanchez to allow the Union organisers to enter the workplace in accordance with rights conferred by s 81(3) of the WHS Act.
64 On 28 March 2018, Mr Sanchez was issued with an Infringement Notice by the State Authority. The basis was that Mr Sanchez had failed to comply with the Improvement Notice by having Union officials removed from the workplace by police.
22 I note that these facts are similar to those in this case. Indeed, as Rangiah J observed in the Toowoomba Bypass Case:
66 Similar Improvement Notices had issued on 9, 11 and 18 April 2018 to Seymour White Construction Pty Ltd, which was responsible for construction of improvements to the Bruce Highway, north of Brisbane. A dispute concerning entry onto that site eventuated in a judgment by Collier J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737; (2019) 292 IR 259. Seven Union officials had entered a construction site pursuant to s 81(3) of the WHS Act. They had refused to produce entry permits and walked around parts of the site, failing to comply with site safety requirements by being unsupervised or unaccompanied. The Union and Messrs Pauls, Seiffert, Albert and Hynes, were respondents both in that case and in the present case.
23 His Honour continued:
76 In these circumstances, I do not accept the Commissioner’s submission that the respondents knew that they were engaging in unlawful conduct, nor that the contraventions were deliberate and calculated. I accept that the Union and the individual officials had a genuine and reasonable belief that they were not contravening ss 494(1) or 500 of the FW Act by their conduct in respect of the Project site.
77 However, I also find that the Union and Messrs Pauls, Seiffert, Albert and Hynes knew that they were risking contravening those provisions, but decided to engage in that conduct regardless of the risk. There is no evidence that the remaining individual respondents knew that they were taking such a risk.
24 His Honour noted the reliance by the respondents in that case on Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607, where Gordon J held at [18]:
[T]he breaches arose out of a disputed and disputable construction of the 2005 Enterprise Agreement and the TRA. Neither breach was flagrant, wilful or deliberate...These changes in industrial law have led to general deterrence being referred to as the “most significant factor” in determining the applicable penalty: see Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847; (2005) 224 ALR 467 at [60], [72]. Where the unlawful conduct arises out of an arguable but erroneous construction of a relevant term, and the subsequent breach cannot be characterised as demonstrating a flagrant or wilful disregard for the agreement, this legislative purpose is not furthered by imposition of a penalty. In these circumstances, neither general nor specific deterrence is a significant factor weighing in favour of imposing a penalty…
25 Justice Rangiah went on:
79 In Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480, I held at [15] that the above passage does not establish any general principle that where unlawful conduct arises out of an arguable construction of a relevant instrument there should be no penalty. However, I accepted that where a contravention of a civil penalty provision has arisen from a contravener’s honest and reasonable, but erroneous, construction of a relevant instrument, that is a powerful factor favouring the exercise of the discretion to decline to impose any penalty, or to limit the amount of any penalty.
26 His Honour concluded that the construction of s 494(2) of the FW Act that formed the basis of the union’s view that the organisers’ conduct would be lawful was always contestable, however all the respondents had a genuine and reasonable belief that their conduct was lawful (at [80]-[81]).
27 While the applicant in the present proceedings urged me to distinguish the findings of Rangiah J and the principles his Honour discussed, I consider the better way forward is to recognise the similarities in the cases before his Honour and me. Ultimately, the views taken by the respondents in the present case in relation to the rights of officials to enter the Project Site were contestable, however I also note that the respondents had the apparently strong support of the State Regulator in issuing improvement and infringement notices which supported the position the respondents took. I note the argument of the applicant that the respondents were requested by the Queensland Police to leave the Project Site, however I infer that the conflicting directions of the respective State authorities was demonstrative of a confusion in understanding of the law, rather than a ringing endorsement by the Queensland Police at that time of the applicant’s position. The State authority responsible for workplace health and safety was a regulator on whom the respondents, not unreasonably, relied for direction in the relevant circumstances.
28 In my view, in assessing penalty in this case, it is appropriate for me to take into account that the respondents had a genuine and reasonable belief that their conduct was lawful, at least in relation to the entry on to the Project Site.
29 I note the disruption on the Project Site to which I have previously referred, which resulted in the attendance of police on multiple occasions. I am unable to attribute the genuine and reasonable belief of the respondents as to their right to enter the Project Site to their conduct following that entry. As the applicant properly submitted, the respondents’ belief did not explain subsequent contraventions after entry, including referable to:
walking around the Project Site
walking around the Project Site without supervisory company and in contravention of occupational health and safety requirements at the Project Site;
driving a vehicle around the Project Site and then parking it and standing around on a live access haul road; and
entering work areas causing work to stop.
30 Nonetheless, in assessing this conduct after entry on to the Project Site, I consider that its objective seriousness should be assessed as being at the low to middle of the range of seriousness.
31 I note that the contraventions in question occurred over a period of 9 days. An issue arises as to whether it could be said that the conduct was an industrial strategy pursued without any regard for the law; cf Pattinson at [67]. That the respondents continued to enter the Project Site after being challenged on their belief of s 81(3) indicates some disregard for compliance with law, in that they continued to “take the odds”.
Circumstances of the contraveners
32 I turn to the circumstances of the respondents individually. First, it is uncontentious that the size and resources of the CFMMEU warrant a penalty that is sufficient to deter it from choosing an “economically irrational choice”; Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; HCA 13 at [66]. It is similarly uncontentious that the CFMMEU has a significant history of prior contraventions. The respondents do not seek a mitigation in penalty in line with these considerations.
33 Second, it is not contentious that Mr Pauls has an extensive history of conduct contravening the FW Act, both before and after the contravening conduct in this case (specifically, 19 contraventions of the FW Act in four separate proceedings). I note that in the present proceedings Mr Pauls was found to have contravened s 494 of the FW Act eight times, and been an accessory to contravention of ss 497 and 500 by other respondents 14 times. The respondents submitted that Mr Pauls ought not be penalised in relation to the contraventions involving his accessorial liability in light of the course of conduct principles discussed earlier. I note that Mr Pauls’ accessorial liability predominantly arose from his entry on to the Project Site in the company of other respondents.
34 While Mr Pauls should receive penalties for his contraventions of s 494, there is merit to the argument of the respondents that there is a risk of double punishment if Mr Pauls is penalised for his accessorial liability in this case. In relation to the contraventions of s 494, I note again Mr Pauls entered the property without an entry permit, although in the belief that he had a right to do so.
35 I also note that Mr Pauls is no longer employed by the CFMMEU, but rather by the CFMEUQ which, I understand, is an entity whose employees are incapable of holding entry permits under Part 3-4 of the FW Act. To that extent issues of specific deterrence appear now to be of diminished relevance to Mr Pauls, although this development must be balanced against Mr Pauls’ history of contraventions and circumstances of apparent disregard for the law. I also note the general proposition that principles of deterrence do not cease to be of relevance merely because the contravener changes employment. In this context I note the following observations of White J in Australian Building and Construction Commissioner v Gava [2018] FCA 1480 at [57] –[59]:
The effect of Mr Gava’s resignation
[57] It was an agreed fact that Mr Gava had ceased to be an employee or official of the CFMMEU with effect from 9 March 2018. Counsel for the Respondents submitted that this made considerations of personal deterrence less important. In support, counsel referred to the following passages in the Lend Lease Sites Case:
[177] Mr Harrison was employed by the CFMEU as an organiser in the period 5 May 2008 to 21 February 2014. … The respondents submitted that, as Mr Harrison has resigned from his employment as an organiser with the CFMEU, personal deterrence is less important in his case. I accept that that is so.
…
[190] Mr Stephenson is no longer employed by the CFMEU. He has not worked for the CFMEU or any other union since July 2014 and does not hold a permit under Pt 3-4. … I accept that it is unlikely that Mr Stephenson will work again as a union organiser and that this reduces the need for specific deterrence to be a prominent consideration in the fixing of penalty in his case.
[58] This does not mean that considerations of personal deterrence are wholly irrelevant. I respectfully agree with the reasons of Charlesworth J in Australian Building and Construction Cmr v McDermott (No 3) [2018] FCA 1105 (ABCC v McDermott) on this topic:
[38] As to specific deterrence, Mr McDermott is no longer the holder of a permit issued under the Act, nor is he an official of the Union. However, there is no evidence to suggest that Mr McDermott no longer participates in activities to which the Act applies, nor is there evidence to support a conclusion that he cannot or will not re-join the Union as an official, whether in a managerial role or in some other capacity. In the absence of such evidence, I would reject the submission that considerations of specific deterrence are wholly irrelevant. Ultimately, it is considerations of general deterrence that loom large in Mr McDermott’s case, particularly having regard to his senior position at the time of this contravention and the defiant mental attitude accompanying his conduct.
…
[88] I have taken into account that Mr Cartledge has, since making submissions as to penalty, ceased to be an employee and an official of the Union. However, the need for specific deterrence cannot be discounted entirely whilst there remains a possibility that Mr Cartledge will in the future again be a union official or a permit holder, or otherwise be in a position to influence others in respect of their compliance with the Act. Mr Cartledge has adduced no evidence as to his future employment intentions and I am not prepared to assume, to his benefit, that he will no longer engage in tasks or activities that are regulated by the Act.
[59] I will proceed on the basis that considerations of personal deterrence are not as prominent as they would be if Mr Gava was continuing in employment as an organiser or in some other official capacity. However, those considerations are not wholly irrelevant.
(emphasis added)
36 Third, it is not in dispute that Mr Seiffert has two additional contraventions of the FW Act, both contraventions occurring after the events the subject of these proceedings, and that these contraventions were of a like nature to those the subject of the present proceedings. However, it is also not in dispute that the respondents’ beliefs concerning their rights of entry have been corrected in light of decisions of this Court including the Full Court. In this respect the need for specific deterrence would appear to be diminished.
37 Fourth, it is not in dispute that Mr Albert has contravened the FW Act twice in two proceedings (both proceedings following relevant events in this case).The respondents also submitted that the principle of specific deterrence was diminished in respect of Mr Albert as he was no longer employed by the CFMMEU. I accept from the evidence of Ms Palmer that Mr Albert has ceased his employment with the CFMMEU and was therefore unlikely to contravene Part 3-4 of the FW Act. However I take a similar view to the need for deterrence in relation to Mr Albert, as I have noted earlier in relation to Mr Pauls.
38 Fifth, I note that, like Mr Pauls, Mr Hynes is no longer employed by the CFMMEU, but rather more recently by the CFMEUQ. It is not in dispute that Mr Hynes has a history of 4 contraventions in two proceedings (both proceedings following relevant events in this case). I take a similar view to the relevance of specific deterrence in assessing an appropriate penalty for Mr Hynes as I took in relation to Mr Pauls, noting Mr Hynes’ history of contraventions.
39 Sixth, Mr Gibson and Mr Kupsch had no prior contraventions of the FW Act. They both remained employed by the CFMMEU. There is no evidence before me that they ceased to hold entry permits under Part 3-4 of the FW Act. An element of specific deterrence is relevant in assessing penalty in both their cases.
40 Seventh, Mr Parfitt had 6 previous contraventions of the FW Act arising from one proceeding. He continued to work as an organiser with the CFMMEU and, I understand, hold an entry permit. Specific deterrence is relevant in assessing penalty in his case.
Cooperation and contrition
41 The parties agreed that the respondents should be entitled to some discount given the respondents’ factual admissions at an early stage in the proceedings. The issue between the parties at the liability trial was a matter of statutory construction. The Court is assisted in the early agreement of the facts in issue and the parties were spared a significant amount of time, resources and costs. I take this into account in arriving at an appropriate penalty; see Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 at [74]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 at [148]; Toowoomba Bypass Case at [91]-[92].
42 That the respondents’ have no made no apology is not an aggravating factor: BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10]; Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2) [2021] FCA 1149 at [48]. I note on the evidence of Mr Kupsch that the CFMMEU has engaged in corrective action by issuing the following memorandum to “All officials of the CFMEU, Construction & General Division, Queensland and Northern Territory Divisional Branch”:
The CFMEU, Construction & General Division, Queensland and Northern Territory Divisional Branch (the Branch) has for many years utilised s.81 (3) of the Qld WHS Act as a means to assist in the resolution of workplace health and safety disputes. The Branch understood that entering sites under s.81 (3) of the Qld WHS Act was not a right of entry for the purposes of the Fair Work Act. This was the position, as the Branch understood, of the regulator under the Qld WHS Act, known as WHSQ.
In 2018 the ABCC commenced litigation against the Union, and others, alleging that s.81(3) Is a 'State or Territory OHS right' within the meaning of s.494 of the Fair Work Act. That litigation was defended, including as far as the High Court, but was ultimately resolved In favour of the ABCC in April 2021 (the Bruce Highway 81(3) Case).
The effect of the Bruce Highway 81(3) Case is that officials of the Branch cannot enter workplaces under s.81 (3) of the WHS Act unless they:
1. hold a permit under the Fair Work Act (Federal permit);
2. show their Federal permit upon request; and
3. otherwise comply with the rules in the fair Work Act regarding right of entry including complying with reasonable OHS requests, acting In a proper manner and not hinder and/or obstruct.
Whilst the outcome of the litigation is a disappointing one for our members, and may have a detrimental impact upon workplace health and safety, we have no choice but to conduct ourselves In accordance with the law as it has been clarified through this litigation. You are directed to only utilise s.81 (3) of the WHS Act In the manner set out In the previous paragraph. If you are not willing to do so, then you are not permitted to utilise s.81 (3) of the WHS Act.
The advice and direction set out in this memorandum applies unless it is revoked by me in writing.
On another note, a consequence of the Bruce Highway 81(3) Case is that officials of the Branch that are hindered, obstructed or delayed when relying on s.81(3) to enter a workplace, can commence penalty proceedings against the occupier/ employer and individuals involved in that breach and you should report any such instances to the Branch for the purposes of obtaining legal advice.
Yours fraternally
Michael Ravbar
Divisional Branch Secretary
43 In considering the above evidence, I adopt similar observations of Rangiah J in the Toowoomba Bypass Case at [93] – [94]:
[93] The evidence of Mr Kupsch indicates that the Union, at a senior level of management, took the view that the relevant conduct was not unlawful and disseminated that view to the organisers. It is apparent that there was a failure of senior management to instruct the organisers not to engage in similar conduct following the interlocutory injunction granted in the first Bruce Highway Caloundra to Sunshine Upgrade Case on 20 April 2018.
[94] It is relevant and significant that the Union now accepts that its construction of s 494(2) of the FW Act was wrong and its senior management has instructed the organisers that they are to desist from the conduct involved in the contraventions.
Course of conduct
44 The respondent submitted that course of conduct principles applied to reduce the number of penalties to be imposed, and the seriousness of the contraventions. In particular, the respondents submitted that the various contraventions of ss 497 and 500 of the FW Act by the individual respondents (with the exception of Mr Albert) in each case comprised the same conduct because, in summary:
Section 497 prohibits the exercise of a State or Territory OHS right in the event that a permit holder refuses to produce an entry permit for inspection;
The section therefore applies to the exercise of rights after a refusal to produce an entry permit for inspection; and
The subsequent conduct of the individual respondents comprising their respective s 500 contraventions was their continued exercise of the right of entry under s 81 (3) of the WHS Act after they refused to produce their entry permits.
45 It is not in dispute that the Court should apply common law principles against double punishment, as explained by the Full Court in Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308, [2010] FCAFC 65. However, as to some extent I have already indicated, as a general proposition I do not accept the respondents’ argument in respect of the individual respondents.
46 In respect of the conduct of individual respondents except Mr Pauls after entering the Project Site, their conduct cannot be treated as arising from the act of entry pursuant to the WHS Act. Section 497 contemplates exercising a State or Territory OHS right with the production at entry of an entry permit for inspection. Notably, s 500 is in a separate part of the FW Act, prohibiting a permit holder from hindering or obstructing any person, or otherwise acting in an improper manner. The acts of the individual respondents in purporting to exercise their claimed OHS rights and entering the Project Site, are distinguishable from their conduct after entering the site.
47 In relation Mr Pauls, I have already observed that Mr Pauls ought not be subjected to multiple penalties in respect of his accessorial liability. However he plainly should be penalised for his contraventions of s 494 of the FW Act on 8 March 2018, and 9, 10, 11, 13, 16, 17 and 18 April 2018.
48 In relation to the CFMMEU, I consider that the penalties to be imposed on the union should reflect those imposed on the individual respondents insofar as concerns the application of course of conduct principles.
Amount of penalties to be imposed
49 As explained by the Full Court in Pattinson, in determining appropriate penalties issues of deterrence (both general and specific) and protection of the public interest are of utmost importance. I note the maximum penalty for each contravention (as at the time of the contravening conduct) was as follows:
For the CFMMEU, 300 penalty units (amounting to $63,000.00); and
For the individual respondents, 60 penalty units (amounting to $12,600.00).
50 The applicant submitted, in summary, that:
significant high-range penalties ought be imposed on the CFMMEU;
significant penalties ought be imposed on Mr Pauls;
mid to high-range penalties were appropriate for Mr Parfitt;
mid-range penalties were appropriate for Mr Seiffert; and
low to mid-range penalties were appropriate for Messrs Albert, Gibson, Hynes and Kupsch.
51 The respondents submitted, in summary, that overall their conduct should be categorised as at the bottom end of the scale of seriousness.
52 In my view, penalties should be imposed as follows.
Messrs Albert, Gibson and Kupsch
53 The conduct of Messrs Albert, Gibson, and Kupsch warrants penalties at the low to mid-range. Materially, all three respondents had not previously contravened the FW Act. Mr Gibson and Mr Kupsch did not subsequently contravene the FW Act, and Mr Albert subsequently did so. In my view they should receive penalties of $3,500.00 per contravention, accordingly:
Mr Albert should receive penalties of $3,500.00 for his one contravention;
Mr Gibson should receive penalties of $3,500.00 for each of his two contraventions; and
Mr Kupsch should receive penalties of $3,500.00 for his one contravention.
Mr Hynes
54 The conduct of Mr Hynes warrants penalties at the mid-range. Although he had no contraventions at the time of the events of March and April 2018, by the time of the hearing Mr Hynes had four contraventions in two proceedings (one contravention on 1-2 May 2018 and the other on 23 August 2018). Mr Hynes can be distinguished from Mr Albert in that Mr Hynes had engaged in further conduct in breach of the FW Act, and although he was no longer an employee of the CFMMEU his conduct should be the subject of penalties which were reflective of principles of general deterrence. In my view Mr Hynes should receive penalties of $5,000.00 for each of his three contraventions.
Messrs Seiffert and Parfitt
55 Similar principles apply to the contraventions of Mr Seiffert and Mr Parfitt. I note however that Mr Seiffert has engaged in 7 contraventions of the FW Act in the context of this proceeding, and two contraventions after the relevant events. Mr Parfitt has engaged in two contraventions of the FW Act in the context of this proceeding and 6 contraventions prior to the relevant events. In my view principles of general and specific deterrence are of importance in respect of both respondents.
56 Mr Parfitt should receive penalties of $5,000.00 for each of his two contraventions.
57 I consider that Mr Seiffert should receive similar penalties, however noting that Mr Seiffert has 7 contraventions, from the perspective of totality I consider that he should be penalised a total of $25,000.00.
Mr Pauls
58 Mr Pauls’ conduct can properly be characterised as warranting a higher penalty, noting that he was not a permit holder, that he was present on all but one of the days on which the contraventions occurred, and that he had a significant history of contravention of the FW Act. In my view issues of general deterrence remain applicable. A penalty of $7,000.00 for each of his 8 contraventions of s 494 of the FW Act is warranted. From the perspective of totality however I consider that he should be penalised a total of $30,000.
CFMMEU
59 The CFMMEU has a significant history of contravention of the FW Act. In this case it does not appear to be in dispute that the CFMMEU ought to have 24 penalties imposed arising from its various contraventions of the legislation. However it is also not in dispute that the union had a genuine, albeit mistaken, belief in relation to the OHS rights of entry of its officials. The union has also taken corrective action after relevant events. Taking into consideration these factors, I consider that a total penalty of $85,000.00 should be imposed on the union for all its contraventions.
Suspended penalties
60 The respondents submitted that the Court should impose wholly suspended penalties on Mr Gibson, Mr Albert and Mr Kupsch for a 3 year period. The respondents submitted that this was appropriate given that:
The contraventions were founded on a genuinely and reasonably held (but mistaken) view of the operation of s 81(3) of the WHS Act;
The respondents’ incorrect view of s 81(3) of the WHS Act has been corrected;
Mr Gibson and Mr Kupsch otherwise had “clean records”; and
Mr Albert was no longer employed by the CFMMEU.
61 The applicant opposed suspension of penalty.
62 It was not in dispute between the parties that the Court may, in its discretion, order a suspended penalty. I note in this respect the following observations of the High Court (Keane, Nettle and Gordon JJ) in Australian Building and Construction Commissioner v Construction Forestry, Maritime, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3:
[114] There are a number of cases in the Federal Court and the Federal Circuit Court (and in the latter’s predecessor) in which orders as to the terms and conditions on which pecuniary penalties are payable, or which had the effect of suspending the operation of pecuniary penalty orders, were purportedly made under s 545(1). As will be explained, those orders are better conceived of as sustained by power implicit in s 546 to do what is reasonably required for, or legally ancillary to, the accomplishment of the specific remedy of pecuniary penalties for which s 546 provides. Since s 545 is confined to preventative, remedial and compensatory orders, it does not support the making of a non-indemnification order in respect of a pecuniary penalty because such an order is properly understood as a penal order. Likewise, despite the breadth of s 23 of the Federal Court Act, given that s 23 does not extend to making penal orders, it will not support the making of a non-indemnification order in respect of a pecuniary penalty.
Implied power under s 546
(i) The extent of the power
[115] Section 546 expressly confers power on the court to make an order that a person pay a pecuniary penalty. From that express conferral of power arises an implied power to make such other orders as are necessary for or facilitative of the type of orders expressly provided for. For the reasons that follow, that implied power under s 546 includes power to make an order that a contravener pay a pecuniary penalty personally and not seek or accept indemnity from a co-contravener, otherwise known as a “personal payment order”.
[116] As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the
(footnotes omitted, emphasis added)
63 The respondent submitted that the Court in Australian Building and Construction Commissioner v Parker [2021] FCA 704 imposed a suspended penalty in that case on Mr Parker in circumstances where Mr Parker had never before contravened the FW Act.
64 In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Quest Apartments Case) (No 2) (2018) 358 ALR 725; [2018] FCA 163 when considering whether to impose a suspended penalty, Tracey J observed as follows:
[67] In Director of the Fair Work Building Industry Inspectorate v Ellen [2016] FCA 1395 (Longford Gas Plant case) at [45]–[61] I reviewed the relevant authorities and identified a range of considerations which were potentially relevant in the exercise of the Court’s discretion.
[68] One of the authorities with which I dealt was Calabro (No 7). That case arose out of protracted strike action by workers at a natural gas project in Western Australia. It was anticipated that the project would be ongoing for many years. The strike action constituted unprotected industrial action. The Court granted interim injunctions which required the workers to cease taking that action. When final orders were made they included wholly suspended daily monetary penalties for breaches of various provisions of the Act. The suspended penalties were to become payable in the event that a respondent was found to have contravened the Act at any time within seven years from the date on which the orders were made. In addition, each respondent was restrained, by injunction, for a period of seven years, from taking industrial action of the kind which led to the imposition of the penalties. In determining that it was appropriate wholly to suspend the monetary penalties, his Honour had regard particularly to “the length and breadth of the terms of the injunction” (at [74]).
[69] Having examined Calabro (No 7) and other cases in which suspended penalties had been sought, I continued (at [57]–[59]):
57 The Court’s discretion to suspend a pecuniary penalty, imposed under the Act, is not to be constrained by prescriptive principles. Nonetheless, some general observations may be made. Any penalty imposed must be meaningful and operate as a deterrent both to the contravenor and any others who might, in future, be tempted to engage in similar conduct. The penalty must also reflect the need to maintain public confidence in the operation of the enterprise agreements which regulate the employment of large numbers of Australian workers: cf Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (an inspector pursuant to s 84(2) of the Workplace Repations Act (1996) (Cth)) (2008) 165 FCR 560; 246 ALR 35; [2008] FCAFC 8. A meaningful penalty will be one that falls within a permissible range, having regard to all of the circumstances of a particular case. Any suspension of whole or part of the penalty will necessarily reduce the amount immediately payable. If the penalty imposed is in the low end of the range then a suspension may take the penalty payable outside the range. Conversely, if the penalty imposed is at the high end of the range there may be greater scope for suspension with the reduced figure remaining within the permissible parameters.
58 The penalty must be meaningful, not only for the purpose of specific deterrence, but also taking into account the important need for general deterrence. If the suspension is conditional on the contravenor’s good conduct during a particular period it may be justified on the basis that it will operate as an incentive to the contravenor to be of good behaviour during that period. In this regard it is notable that the main reason why McKerracher J was prepared wholly to suspend the pecuniary penalties which he had imposed in Calabro (No 7) was that the contravenors were also restrained, by injunction, from any repetition of the contravening conduct for a period of seven years. If, during that period, any further contraventions occurred a contravenor would be liable to pay the suspended penalty and be subject to prosecution for contempt of Court. General deterrence, on the other hand, requires that the amount imposed must be sufficiently high as to serve to dissuade others from acting in a similar way. This object will not be achieved if the amount payable, following suspension, is very low.
59 Other considerations which may, in a given case, have a bearing on the question of whether or not to suspend (wholly or in part) a monetary penalty include the seriousness of the offending conduct, the contravenor’s prior conduct and the prospect of any future contravention coming to the attention of the applicant in a particular proceeding. This latter consideration may weigh more heavily in industries, such as the construction industry, in which workers regularly move between employers and projects and may assume greater relevance where the project on which the misconduct occurred has been completed by the time the Court comes to consider appropriate penalties and whether or not to suspend them.
[70] As I have already said, the mitigatory factors on which Mr Farrugia relied were neither individually, nor collectively, compelling. He is under no injunctive restraint from repeating his misconduct. He has offered no assurance to the Court that his conduct will not be repeated. By the time of the hearing on liability Mr Farrugia was no longer working at the site and was working elsewhere for another employer. His contraventions of the Act, and, in particular, s 348, were both deliberate and serious.
65 In my view, having regard to the circumstances of this case, a suspended penalty would not be a meaningful deterrent or serve the purposes of the civil pecuniary penalty regime. In particular I note there was contravening conduct after entry on to the Project Site which could not be explained by factors referable to mistaken belief; that Mr Gibson and Mr Kupsch continued to work for the CFMMEU and offered no assurance of non-repetition of contravening conduct referable to s 500 of the FW Act; and the conduct took place over 9 occasions.
Personal Payment Orders
66 The applicant submitted that a personal payment order be made against the second to eighth respondents. The purpose of personal payment orders is to promote the principles of general and specific deterrence; see Non-Indemnification Personal Payment Case; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Botany Cranes Case) (No 4) [2021] FCA 525 at [23] – [24].
67 The respondents submitted that the Court’s discretion to order personal payment should not be exercised in this case, given the objective seriousness of the contravening conduct and the diminished need for specific deterrence in each of the respondents.
68 I note the observations of Rares J in The Botany Cranes Case at [27] – [29]:
[27] I do not consider that justice will be served by making an order that merely allows the Union to pay, as it and Mr Byrnes obviously intend, the whole of the penalty of $5,000 that will be imposed on Mr Byrnes. Such an unqualified order would not accomplish the statutory purpose of a pecuniary penalty, namely specific and general deterrence. Rather, the failure to impose a penalty that imposes a real sting or burden on Mr Byrnes would eschew the very object for which the penalty must be imposed: The Non-Indemnification Case at [125]; Volkswagen at [126], [131]. I am of opinion that, in the circumstances, the parties’ proposal that any penalty imposed on Mr Byrnes not include a non-indemnification or personal payment order, is not an appropriate remedy for his contraventions of the Act: Commonwealth v Director, Fair Work Building Inspectorate (2015) 258 CLR 482; 326 ALR 476; [2015] HCA 46 at [58] per French CJ, Kiefel, Bell, Nettle and Gordon JJ.
[28] Ordinarily, when a court imposes a fine or a civil pecuniary penalty on a person, the person pays it personally, as is the clear intention of the legislature in prescribing such a consequence for the person’s contravention of the law. Such an outcome is what both the person and the community expect. As I have explained, Mr Byrnes’ argument that somehow it would be unfair to require him personally to pay a penalty for his contraventions of the law defies both common sense and the legislative purpose inherent in s 81(1)(a). Indeed, the argument reduces to no more than an assertion that he was entitled to participate in this proceeding on the basis that he was not at risk of personally having to pay any penalty that the Court imposed on him and that it would be unfair to penalise him in that way. He seems to have proceeded (as the Union’s embedded culture no doubt encouraged) on the assumption that the Court had to accept that the Union should pick up the bill for his contravention of the law and that it would be unfair to make him do so in order to deter him from engaging in similar conduct in the future.
[29] For the reasons I have given, that argument is antithetic to the rule of law or, indeed, any respect for the law. While in some cases the circumstances may justify a third party making payment of a fine or penalty imposed on a contravener, there is nothing in the facts here to suggest that Mr Byrnes should not pay at least some part of the penalties that I have imposed out of his own resources. In my opinion, that is the only way that he, together with other members and officers of the Union, will be deterred from engaging in similar conduct in the future. He and they must be on notice that they personally, and not the Union, will be required by the Court to answer with their personal resources and finances for their conduct constituting any contravention that involves the Union’s culture of contravening the law as a mere cost of doing business, as occurred in this matter. I consider that justice will be done if I make a non-indemnification order in respect of the $3,500 penalty that I imposed on Mr Byrnes for contravening s 52(a).
69 Applying these principles in the present case, it is appropriate for personal payment orders to be made.
CONCLUSION
70 For the reasons I have outlined, I order that penalties in the amounts described above be paid to the Commonwealth. In accordance with the views of the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117 at [6], the individual respondents have 90 days to pay their respective penalties. The CFMMEU however must pay the penalty imposed within 28 days.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. |
Associate:
QUD 238 of 2018 | |
TE ARANUI ALBERT | |
Fifth Respondent: | BLAKE HYNES |
Sixth Respondent: | LUKE GIBSON |
Seventh Respondent: | MATTHEW PARFITT |
Eighth Respondent: | ROYCE KUPSCH |
