Federal Court of Australia

Fair Work Ombudsman v Blakeley [2023] FCA 1597

ORDERS

PENAL NOTICE

THE COURT DECLARES THAT:

1.    The first and second respondents contravened s 500 of the Fair Work Act 2009 (Cth) on 28 February 2020 at the Coles Distribution Facility Project located at 50 Weedman Street, Redbank in the State of Queensland (Project) by improperly exercising or seeking to exercise a right conferred by Part 3-4 of the Fair Work Act 2009 (Cth) by:

(a)    standing directly in the path of a reversing concrete truck, so as to prevent it from discharging its load of liquid concrete;

(b)    manoeuvring themselves to ensure that they remained in the path of the concrete truck, despite its attempts to move around them; and

(c)    refusing to move from the path of the concrete truck, despite repeated requests.

2.    The first respondent contravened s 503 of the Fair Work Act 2009 (Cth) on 28 February 2020 at the Project by misrepresenting to a member of the Queensland Police Service that he had the power to stop works, when he did not.

3.    By operation of ss 550(2)(c) and 793(1) of the Fair Work Act 2009 (Cth), the third respondent was engaged in the contraventions outlined in declarations 1 and 2 above.

THE COURT ORDERS THAT:

1.    Pursuant to s 546 of the Fair Work Act 2009 (Cth), the first respondent pay pecuniary penalties totalling $14,000 to the Consolidated Revenue Fund of the Commonwealth within 30 days of these Orders.

2.    Pursuant to s 546 of the Fair Work Act 2009 (Cth), the second respondent pay pecuniary penalties totalling $7,000 to the Consolidated Revenue Fund of the Commonwealth within 30 days of these Orders.

3.    Pursuant to s 546 of the Fair Work Act 2009 (Cth), the third respondent pay pecuniary penalties totalling $150,000 to the Consolidated Revenue Fund of the Commonwealth within 30 days of these Orders.

4.    There be no order as to costs.

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

REASONS FOR JUDGMENT

COLLIER ACJ:

INTRODUCTION    

1    Before the Court is an amended originating application filed 18 July 2022 seeking declarations by the Court and the award of penalties in relation to the respondents’ contraventions of ss 500 and 503 of the Fair Work Act 2009 (Cth) (Fair Work Act) that occurred on 28 February 2020.

2    As a result of a mediation on 17 June 2022, the parties reached agreement as to liability. The following admissions have been made by the respondents:

    The first respondent admitted to one contravention of s 503 of the Fair Work Act by his conduct at the Coles Distribution Facility Project on 28 February 2020.

    The first and second respondents each admitted contravening s 500 of the Fair Work Act on 28 February 2020 by their conduct at the Coles Distribution Facility Project.

    By operation of s 793 of the Fair Work Act, the third respondent admitted to two contraventions of s 500 and one contravention of s 503.

3    The applicant however still seeks the Court make declarations of these agreed contraventions, and further seeks that the Court impose penalties in relation to these contraventions as follows:

3.     A declaration that, in contravention of section 500 of the Fair Work Act 2009 (Cth) (FW Act), Mr Luke Gibson (Mr Gibson), on 28 February 2020, at the project known as the ‘Coles Distribution Facility Project’ (Project) located at 50 Weedman Street, Redbank in Queensland (Premises), acted in an improper manner by:

b. standing between the concrete trucks and tele-belt; and

c. refusing to move from his position between the concrete trucks and tele-belt.

4.     A declaration that, in contravention of section 500 of the FW Act, Mr Andrew Blakeley (Mr Blakeley), on 28 February 2020, at the Project, acted in an improper manner by:

a. standing between the concrete trucks and tele-belt; and

b. refusing to move from his position between the concrete trucks and the tele-belt when requested.

6.     A declaration that, in contravention of section 503 of the FW Act, Mr Blakeley, on 28 February 2020, at the Project, took action, and in such action, was reckless as to whether he gave the impression to officers of the Queensland Police Service that the actions of himself and Mr Gibson at the Project, particularly in relation to the stopping of works, were authorised by Part 3-4 of the FW Act.

7.     Declarations that, by reason of ss. 793(1) and 550(2)(c) of the FW Act (or a combination of these provisions), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was knowingly concerned in or party to the contraventions set out at paragraphs 3 to 6 above and, as a result, the CFMMEU contravened those contraventions, on each occasion.

8.     Orders pursuant to section 546(1) of the FW Act, imposing pecuniary penalties on Mr Blakeley and Mr Gibson in respect of each contravention set out at paragraphs 3 to 6 above.

9.     Orders pursuant to s.546(1) of the FW Act that any penalty imposed on each of Mr Blakeley and Mr Gibson under paragraph 8 above be paid personally in that they must not, whether before or after the payment of the penalties:

a. seek to have or encourage the CFMMEU in any way whatsoever, directly or indirectly, to pay to them or for their financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the penalties whether in whole or in part;

b. accept or receive from the CFMMEU in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part; and

c. accept or receive, in any way whatsoever, directly or indirectly, any money or financial benefit referable to the payment of the penalties, whether in whole or in part, where such money or financial benefit was derived from a crowd funding digital or electronic platform.

10.     Orders pursuant to s.546(1) of the FW Act imposing pecuniary penalties on the CFMMEU in respect of each contravention set out at paragraph 7 above.

11.    Orders pursuant to s.546(3)(a) of the FW Act that any pecuniary penalties imposed on the Respondents be paid to the Commonwealth of Australia within 28 days of the Court’s order.

12.     Such further or other orders as this Honourable Court considers appropriate.

(tracked changes showing amendments omitted)

4    As a result of the withdrawal of a constituent part of the third respondent pursuant to Part 3 of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act), the third respondent is now known as the Construction, Forestry and Maritime Employees Union (CFMEU).

Background

5    The relevant background facts, as appear to be accepted by both parties, are set out below:

    At all relevant times, the first and second respondents each were officials of the third respondent.

    The contraventions occurred in the relation to a construction project known as the “Coles Distribution Facility Project” (Project) which involved the construction of a warehousing facility and ancillary offices.

    The principal contractor of the Project was Richard Crookes Constructions Pty Ltd (RCC).

    RCC engaged QR Construction Services Pty Ltd (QRC) to perform concreting services on the Project.

    Workers hired by QRC, through its related entities, were hired under an enterprise agreement that did not cover the CFMEU, commonly referred to as a “non-union EBA”.

    QRC had scheduled a concrete pour at the Project to take occur at 3:00am on 28 February 2020. The concrete pour was large and involved approximately 50-60 truckloads of concrete. The concrete pour was time sensitive due to the nature of the concrete. Once the process had commenced, the concrete needed to be used within 60-75 minutes or otherwise it would set, causing damage to any truck carrying it at the time.

    On 28 February 2020, workers began arriving at approximately 1.00am to prepare for the pour, which was ready to commence at approximately 3.00am.

    At approximately 3.00am, the first and second respondents entered the site of the Project.

    When they arrived, the first and second respondents approached RCC’s project manager, a QRC manager and RCC’s Senior Site manager at the site office on the premises. It appeared to be accepted that the following then occurred:

•    The first and second respondents showed their entry notices pursuant to s 119 of the Work Health and Safety Act 2011 (Qld) (WSH Act); and

•    Amongst other conversation, the following conversation was had:

Second Respondent:     We’ve had a report that you’re pouring outside DA hours, and there’s insufficient lighting.

……

Second Respondent:     We need to check your access, egress, lighting and council permits for the pour outside DA.

RCC Senior Site Manager:     Where? What location?

Second Respondent:    Out on site. We’re going out on site. There’s no lighting, this is dangerous, you’re putting people at risk.

    At approximately 3:15am, the first and second respondents went onsite to the location of the concrete pour. The concrete pour was about to commence. The first and second respondents stood in positions that prevented the trucks from pouring the liquid concrete onto the tele-belt. They refused to move from the path of the trucks when requested and moved in the way of the trucks attempting to move.

    At approximately 4:30am, members of the Queensland Police Service (QPS) arrived at the premises and spoke to the first respondent. It was accepted by the parties that the exchange between QPS and the first respondent involved the following statement by the first respondent:

“Well we can stop works if we think it’s unsafe under the Act. Yeah, 100%. So it’s a matter of interpretation and unfortunately that’s how the workplace health and safety act works. It’s not exactly black and white. But for us if we think there’s workers at risk, we’ll do anything to avoid that.”

    No action was taken by QPS and they left the site.

    The first and third respondents have accepted that the statement made by the first respondent conveyed the impression that he was authorised by the WHS Act to stop work.

    The concrete pour was unable to proceed.

    At approximately 4:45am, the first and second respondents left the site of the concrete pour and returned to the site office. They engaged in further conversations with representatives of RCC, the QRC Group and Workplace Health and Safety Queensland.

relevant legislation

6    Section 500 of the Fair Work Act provides:

500 Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Note 1:     This section is a civil remedy provision (see Part 4‑1).

Note 2:     A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

Note 3:     A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).

7    Section 503 of the Fair Work Act provides:

503 Misrepresentations about things authorised by this Part

(1)     A person must not take action:

(a)     with the intention of giving the impression; or

(b)     reckless as to whether the impression is given;

that the doing of a thing is authorised by this Part if it is not so authorised.

Note:     This subsection is a civil remedy provision (see Part 4‑1).

(2)     Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

8    Section 546 of the Fair Work Act provides:

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 1: Pecuniary 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)).

Note 2: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of an enterprise agreement only because of the retrospective effect of an amendment made under paragraph 227B(3)(b) (see subsection 227E(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).

Payment of penalty

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

(a)     the Commonwealth; or

(b)     a particular organisation; or

(c)     a particular person.

Recovery of penalty

(4)     The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.

No limitation on orders

(5)     To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

9    Section 550 of the Fair Work 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.

Note:     If a person (the involved person ) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

(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.

10    Section 793 of the Fair Work Act provides:

793 Liability of bodies corporate

Conduct of a body corporate

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

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

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

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

State of mind of a body corporate

(2)     If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)     that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)     that the person had that state of mind.

Meaning of state of mind

(3)     The state of mind of a person includes:

(a)     the knowledge, intention, opinion, belief or purpose of the person; and

(b)     the person’s reasons for the intention, opinion, belief or purpose.

Disapplication of Part 2.5 of the Criminal Code

(4)     Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.

Note:     Part 2.5 of the Criminal Code deals with corporate criminal responsibility.

(5)     In this section, employee has its ordinary meaning.

Evidence

11    The applicant relied on the following affidavit material:

    Affidavit of Christopher Jones filed 4 February 2022

    Affidavit of Russell Suereth filed 4 February 2022

    Affidavit of Michael French filed 4 February 2022

    Affidavit of Peter Bunce filed 8 February 2022

12    The respondent relied on the follow affidavit material:

    Affidavit of Kris-Anne Justine Birch filed 26 August 2022

Submissions

13    In summary, the applicant submitted the following in relation to penalty:

    The primary purpose of civil penalties is the promotion of the public interest in compliance, by the deterrence of further contraventions. The Court must do what it can to deter non-compliance;

    The arrival of the first and second respondents at the Project was too late to have input;

    The behaviour of the officials was wanton vandalism and undeniably unlawful;

    The officials, as persons in the construction industry, ought to have known the effect that their actions would have;

    The first respondent recklessly represented to the police that his permit armed him with powers that he did not have;

    The officials’ behaviour had an ulterior purposes relating to the terms and conditions of the “non-union EBA”;

    the actions of the first and second respondents were deliberate;

    A penalty must be set at an amount that is meaningful to provide the necessary ‘sting’ and deterrence, in circumstance where the third respondent is a large, asset rich and well-resource organisation;

    Whilst the first and second respondents no longer possess federal entry permits, they both retain state WHS permits, and have demonstrated re-offending and a willingness to mislead police officers;

    The respondents did not make admissions until late into proceedings, after evidence was filed;

    There is no evidence of contrition, or any corrective action taken by the respondents;

    The first and second respondents each have three prior contraventions of s 500 of the Fair Work Act, with the present contravention being the third time the contravention occurred jointly;

    The third respondent has an extensive history of prior conventions;

    The second respondent should be personally responsible for paying any penalties imposed on him to further both general and specific deterrence; and

    Penalties near the maximum should be imposed on each respondent, for each contravention.

14    In summary, the respondents jointly submitted the following in relation to penalty:

    Whilst the respondents conceded that there was sufficient lighting at the Workface, this was not dispositive;

    Each of the respondents co-operated and admitted contraventions. The public interest has been served by those admissions, as justice was facilitated, and the costs and inconvenience of a contested trial were avoided;

    The respondents made admissions at the earliest opportunity after the applicant’s pleadings were amended to properly reflect the contravening conduct;

    The Court should not exercise discretionary power to make non-indemnification orders in respect of the second respondent;

    The circumstances and nature of the current contraventions were not such as to warrant the making of non-indemnification orders where the conduct was an excessive response to what were genuine concerns;

    An examination of the prior contraventions of the first and second respondents does not lead to the conclusion that an escalated deterrent effect is warranted where the other contraventions occurred at around the same time as the present contraventions. This was not a case where the contravening conduct continued after the imposition of penalties;

    The third respondent’s history of contravening entails that specific deterrence has a greater role to play in formulating an appropriate penalty. However, the fact of its history of contravening in and of itself, says little about the particular contraventions here;

    The Court should utilise the totality principle in identifying appropriate penalties for the first and third respondents; and

    The following penalties should be imposed:

•    In respect of the first respondent’s two contraventions, penalties in the middle range not exceeding a single penalty of $12,600;

•    In respect of the second respondent’s contravention, a penalty in the middle range around $6,000; and

•    In respect of the third respondent’s three contraventions, penalties not exceeding the sum of two penalties, or $126,000.

15    In summary, the applicant submitted the following in reply to submissions on penalty:

    The DA conditions was an excuse used by the first and second respondents in circumstances where their actions were motivated by other interests;

    The factual matters admitted by the respondents did not change and were the same as those originally pleaded, yet the respondents did not admit these until the matter was significantly advanced;

    The bulk of the trial preparation had already been completed before admissions were made;

    The respondents did not provide any evidence of contrition or correction action;

    The respondents’ submission that personal payment orders ought not to be imposed should be rejected as the second respondent’s conduct was irrational, and the stoppage was more unsafe than the original conditions;

    The repetitive nature of the first and second respondents’ conduct is evidence of the need for deterrence. It is not relevant that the prior contraventions occurred around the same time;

    The totality principle ought not be engaged in respect of the first respondent, as the two contraventions were completely distinct. One contravention consisted of physically standing in the path of a truck, and the other involved misleading a police officer about his right to do so; and

    The totality principle is discretionary and ought not to be applied in relation to the contraventions of the third respondent.

16    Following the hearing, the applicant filed further written submissions that in summary submitted:

    The central fact of the case is that the respondents’ conduct was patently unlawful and deliberately so. Even if a legitimate purpose existed for the conduct, that in itself did not mitigate the adoption of illegitimate means;

    There is no evidence to support the respondents’ submissions that, on the day of the contraventions, fatigue had not been appropriately managed and that the work was unsafe. The failure to raise evidence on this gave rise to a Jones v Dunkel inference; and

    The Court should not reject Mr Bunce’s evidence that Mr Gibson said words to the effect of “None of this would’ve happened if you paid the boys what they’re worth”.

17    Following the hearing, the respondents filed further written submissions. In summary, the respondents submitted:

    Whilst the conduct of the first and second respondents was conduct which contravened the Fair Work Act, it was an excessive response to legitimate safety concerns which arose in the following circumstances:

•    The concrete pour was schedule to occur at 3:00am, a time where this was no natural light and risk of fatigue was elevated;

•    It was the first occasion on which an early morning concrete pour had been scheduled; and

•    Performance of work at that hour at that site was irregular; it had not been approved by Council;

    The applicant bore the onus of making out the claim as to the purpose or motive for the contravening conduct;

    The existence of genuine safety concerns that motivated the first and second respondents was supported by the following evidence:

•    On the morning of the contraventions, the first and second respondents repeatedly expressed their concerns about safety issues, including by calling the Work Health and Safety Queensland Inspector (the Inspector);

•    There was at least one malfunctioning lighting tower at the site on 28 February 2020;

•    The most senior representative of RCC on site admitted that CFMEU was correct that the lighting was insufficient;

•    The Inspector, after having conferred with all the parties, was persuaded that RCC needed to make improvements to the lighting to discharge its safety obligations; and

•    RCC subsequently made several improvements at the site to address the safety concerns raised during the morning.

18    After the first day of hearing, further written submissions were also filed by both parties in relation to the tender of an Improvement Notice sought by the respondents. At the second day of the hearing, Counsel for the respondents advised that she no longer pressed the tender of such document.

CONSIDERATION

Legal Principles

19    The principles relating to the imposition of penalties under s 546 of the Fair Work Act are well established.

20    The primary purpose of imposing such penalties is deterrence of future contraventions: Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13 (Pattinson).

21    As explained in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 at [20], in determining the appropriate penalty to be imposed, the Court is to take into consideration relevant factors including:

the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition”.

22    These factors however are not to be used as a rigid legal checklist, rather the Court must consider the relevant factors in light of the circumstances: Pattinson at [19]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 580 [91].

Assessment of Penalty

Nature and Circumstances of the conduct

23    The circumstances of the contravening conduct are set out earlier in this judgment. Relevantly, the contraventions occurred on 28 February 2020 in relation to:

    the first and second respondents stopping the concrete pour at the Project; and

    the representations made by the first respondent to an officer of the Queensland Police Service.

24    A key issue between the parties appears to be the purpose of the respondents’ conduct, and whether such conduct was an aggravating or mitigating factor. That issue was also the subject of cross-examination at the hearing.

25    The respondents submitted that the contravening conduct of the first and second respondents was an excessive response to what were genuine safety concerns about whether the concrete pour, which was being conducted in the early hours of the morning, contrary to the terms of the development approval for the site, was being conducted inappropriately and in an unsafe manner.

26    In support of this, the respondents submitted:

    The concrete pour was scheduled in the early hours of the morning, which was the first occasion on which such activity had been scheduled at that site;

    The performance of work at that hour at the site had not been Council approved;

    The performance of work at that hour gave rise to an elevated risk of fatigue which is a safety concern;

    There were lighting concerns as there was no natural light at that hour and at least one lighting tower was malfunctioning at the site on 28 February 2020;

    Upon arrival at the site the first and second respondents repeatedly expressed their concerns about safety issues during the morning, including by calling the Inspector;

    During cross-examination of witnesses who were involved in the management of the site, it was accepted that lighting of a walkway to access the concrete pour area on the site was insufficient and posed a risk;

    The Inspector, after having conferred with all the parties, was persuaded that the principal contractor needed to make improvements to the lighting to discharge its safety obligations; and

    The principal contractor went on to make several improvements at the site to address the safety concerns raised during the morning.

27    The applicants submitted there was a lack of evidence adduced by the respondents in support of these safety concerns.

28    The applicant’s position was that the respondents’ conduct was not for the purpose of safety concerns as they submitted, but rather that they had an ulterior purpose relating to the terms and conditions of the “non-union” enterprise agreement under which the employees of QRC worked. The existence of such ulterior purpose was submitted to be an aggravating factor, and was supported by an alleged comment made by the second respondent alluding to the underpayment of workers on the site at the time of the contraventions. Whilst the respondents did not accept that the exact comment was made, they conceded that a comment in relation to payment of workers was made, but submitted that it did not provide a proper basis for the drawing of an inference that the conduct of the officials was not connected to safety concerns. The respondents submitted that “the fact that a union official makes mention of an industrial issue with an employer is not an extraordinary event. It is an everyday occurrence between parties in an ongoing relationship”.

29    The applicant submitted that even if a legitimate purpose existed, that was no mitigating factor to the adoption of illegitimate means: ABCC v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 at [72].

30    In my view while there may have been legitimate safety concerns relating to the nature of the work and its timing, based on evidence before me I consider it likely that the conduct of the first and second respondents was also motivated by industrial relations conditions referable to the non-union agreement in place at the Project.

Seriousness of the contravention

31    The applicant submitted that the conduct of the respondents on 28 February 2020 can only be described as “deliberate”, and that the misuse of their statutory powers was a serious matter. In summary, the applicant’s submission was that this was supported by the following:

    The timing of the arrival of the first and second respondents was too late to have input into the preparation of concrete pour, but rather was well-timed so as to cause maximum disruption and damage by stopping the work mid-pour;

    As persons engaged in the construction industry, the first and second respondents ought to have known the effect that their actions would have;

    The first respondent took advantage of the QPS officer’s lack of knowledge in relation to industrial law, and recklessly misrepresented the powers of his permit; and

    The lack of apparent safety concerns.

32    The applicant further submitted that the contravening conduct caused approximately seven truckloads of concrete to be dumped and wasted, causing a loss of approximately $25,000. I do not understand this loss to be disputed.

33    The respondents disputed however that the contravening conduct was deliberate, and further submitted that:

    In relation to the contravention of s 500, the first and second respondents’ conduct was an excessive response to genuine concerns; and

    In relation to the contravention of s 503, the first respondent’s conduct in conveying the impression was reckless rather than deliberate.

34    I consider that the contravening conduct was serious to the extent that it was a misuse of power by officials, causing loss to RCC. However, in the circumstances of this case there was no evidence that the respondents’ conduct caused anyone to be at risk of injury, nor was there evidence of aggravating conduct by either the respondents at relevant times. In the circumstances I am satisfied that the objective seriousness of each of the respondents’ contraventions falls within the mid-range.

Circumstances of the contraveners including size, resources, and prior contraventions

First and Second Respondents

35    The first and second respondents are individual persons.

36    Whilst the second respondent is no longer employed by the third respondent, he is now employed by a Queensland Union, namely CFMEU Queensland, and retains a State workplace health and safety permit as opposed to a federal entry permit. Accordingly, the applicant submitted deterrence is still pertinent.

37    The first respondent also no longer possesses a federal entry permit, however retains a State workplace health and safety permit.

38    The first respondent has a history of three prior contraventions of s 500 of the Fair Work Act in respect of conduct occurring from 15 April 2020 to 5 November 2020. Penalties were imposed in all three matters. In one of the matters a personal payment order was made. The conduct of the first respondent in each of these prior contraventions appears to have been substantially similar to the present conduct. Two out of three of the prior contraventions occurred alongside the second respondent.

39    The first respondent did not have any prior contraventions of s 503 of the Fair Work Act.

40    The second respondent had a history of three prior contraventions of s 500 the Fair Work Act. The first contravention was in March/April 2018 and two contraventions occurred in April 2020 alongside the first respondent. Penalties were imposed in respect of all contraventions, with one warranting a personal payment order.

41    The respondents submitted that as the conduct of the first and second respondents the subject of the present proceedings occurred prior to the imposition of penalties in respect of the other contraventions, the present conduct could not be said to have evidenced defiance in the face of penalties imposed by the Court, and support the need for specific deterrence. I consider this submission to be of limited weight.

42    I am satisfied that, at least in relation to s 500 of the Fair Work Act, there is a need for specific deterrence in respect of the first and second respondents given the recurrence of similar conduct, particularly alongside each other.

Third Respondent

43    It is uncontentious that the third respondent, CFMEU, is a large and well-resourced organisation.

44    In circumstances where the contravener is large and well-resourced, the proposition has been accepted that a larger penalty may be imposed so at to be more than simply the cost of doing business: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 at [39]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [66]; Pattinson at [17], [60]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Bendigo Theatre Case) (No 2) [2018] FCA 1211 at [16]; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 at [62].

45    It is further uncontentious that CFMEU has an extensive history of prior contraventions, for which it has previously been criticised by this Court, both in respect of industrial law generally and specifically in respect of ss 500 and 503 of the Fair Work Act. The history of prior contraventions and need for specific deterrence of CFMEU was accepted by the respondents.

46    The respondents however submitted that, as distinct from Pattinson, the present contraventions were not in furtherance of any unlawful industrial policy adopted by the first respondent, and was not an instance of deliberate recalcitrance by the first respondent endorsed or procured by its senior management. In response, the applicant submitted that CFMEU’s history demonstrated a strategy of choosing to pay a penalty in preference to obeying the law and Pattinson provides that the maximum penalty may be fixed where such strategy exists. The evidence before me, and the case law involving previous contraventions by the CFMEU, suggests that the submissions of the applicant in this respect are correct.

47    The penalty imposed on the third respondent should reflect the need for specific deterrence given its large resources and significant recurrence of contraventions. The penalty must not simply be seen by the third respondent as the cost of doing business.

Admission and Contrition

48    Each respondent made admissions to the contraventions.

49    The applicant submitted that, despite eventual cooperation and admission, such admissions were made late into the proceedings and reflected factual matters that were pleaded from the commencement of the claim. Further, there had been no evidence of contrition or corrective actions taken by any of the respondents. Accordingly, it submitted only a small mitigation of penalty was warranted.

50    In turn, the respondents submitted that their admissions avoided the costs and inconveniences of a trial. Further, it was submitted that the reason for “late” admission was the applicant’s final amendment of pleadings, which significantly narrowed the allegations. The respondents accordingly made their admissions at the first point that the pleadings properly reflected the contravening conduct.

51    The absence of contrition or any apology does not operate as 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].

52    The applicant amended its pleadings, and the relevant admissions were subsequently made by the respondents, such that I am prepared to infer that the amendments by the applicant contributed to those admissions. In this respect an inference can also be drawn that the pleadings as initially drafted were too broad. The admissions by the respondents at this point of the proceedings obviated the time and expense of a trial on liability. In my view some mitigation of penalty is warranted given the cooperation and admissions of the respondents.

Amount of penalties to be imposed

53    At the time of contravention, the maximum penalty for each contravention of s 500 or s 503 of the Fair Work Act was:

    60 penalty units amounting to $12,600 each for the first and second respondents; and

    300 penalty units amounting to $63,000 for the third respondent.

54    The applicant submitted that the following penalties should be imposed:

    In respect of the first respondent, a penalty of 80-90% of the maximum for each contravention being $20,160 - $22,680.

     In respect of the second respondent, a penalty of 80-90% of the maximum for its one contravention being $10,080 - $11,340.

     In respect of the third respondent, the maximum penalty for each of the three contraventions totalling $189,000, being $63,000 for each contravention.

55    The respondent submitted that the following penalties should be imposed:

    In respect of the first respondent’s two contraventions, a penalty in the mid-range not exceeding a single penalty of $12,600.

    In respect of the second respondent’s contravention, a penalty in the mid-range amounting to around $6,000.

    In respect of the third respondent’s three contraventions, a penalty not exceeding the sum of two penalties of $126,000.

56    The respondents further submitted that the principles of “course of conduct” and “totality” should apply in respect of the first and third respondents, as the conduct involved in each contravention was closely connected, both in time and character. I accept the submission of the applicant that the first respondents’ contraventions of ss 500 and 503 were completely distinct, in that one consisted of physically blocking the concrete truck, and one involved misleading a police officer as to his right to do so. While the two contraventions were temporally close, I do not consider that they constituted one “course of conduct”. I do however consider that in respect of the first respondent, the totality principle, as distinct from course of conduct principles, may be used as a “final check” to ensure the aggregate penalty is just and appropriate: Australian Building and Construction Commissioner v Ingham (180 Brisbane Construction Case) (No 2) [2021] FCA 263 at [102].

57    I accept that the totality principle ought not to be applied where there is a significant need for deterrence and a change within the internal governance and systemic behaviour of CFMEU: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 at [87].

58    Whilst not applying the maximum penalty “mechanically”, there is to be some reasonable relationship between the theoretical maximum, and the final penalty imposed: see Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 at [155]–[156].

First Respondent

59    In my view, a penalty of $7,000 should be imposed in respect of each contravention. I consider that penalties of this amount are appropriate for the following reasons:

    The objective seriousness of the contravening conduct was in the mid-range;

    The first respondent admitted the contraventions, thus warranting a discount in penalty;

    There were no aggravating factors referable to the conduct;

    The contravening conduct caused economic loss to RCC;

    The contravening conduct was for a limited duration; and

    A need for specific deterrence is evident as the first respondent has a history of engaging in similar contravening conduct, particularly together with the second respondent; and

    Misleading an officer of the Queensland Police Service and misusing statutory powers is serious.

60    I further consider that the totality principle supports imposition of each of these penalties, such that the total penalty imposed on the first respondent is $14,000.

Second Respondent

61    In my view, a penalty of $7,000 for the contravention would be appropriate for the following reasons:

    The objective seriousness of the contravening conduct was in the mid-range;

    The second respondent admitted the contravention, thus warranting a deduction in penalty;

    There were no aggravating factors of the conduct;

    The contravening conduct caused economic loss to RCC;

    The contravening conduct was for a limited duration; and

    A need for specific deterrence is evident as the second respondent has a history of engaging in similar contravening conduct, particularly together with the first respondent; and

    Misusing statutory powers is serious.

62    I note the comment attributed to the second respondent concerning the need for higher pay of workers, however I do not consider that such comment specifically elevated the seriousness of the conduct of the second respondent, in circumstances where both first and second respondents were present at the workplace for the same reasons.

Third Respondent

63    In my view, a penalty of $50,000 for each of the three contraventions (totalling $150,000) would be appropriate for the following reasons:

    The objective seriousness of the contravening conduct was in the mid-range;

    The respondents admitted the contraventions, thus warranting a discount in penalty;

    There were no aggravating factors referable to the contravening conduct;

    The contravening conduct caused economic loss to RCC;

    The prior contraventions of the third respondent indicates that there is a significant need for specific deterrence, as it appears that prior penalties have not encouraged a culture of compliance with industrial laws in the CFMEU; and

    The third respondent is a large, well-resourced organisation.

Personal Payment Orders

64    The applicant sought a personal payment order, including non-indemnification order, to be made only against the second respondent. It submitted, in summary, a personal payment order would be appropriate as:

    There is a need for specific and general deterrence in respect of the repeated contraventions of s 500, all of a similar nature, particularly where he still works within the industry and continues to hold a State WHS permit;

    The second respondent evidenced an ulterior purpose to his contravening conduct by making a comment in respect of payment of the workers; and

    There may be an apparent disinterest in any legal liability that may attach to their repeated contraventions.

65    The respondents submitted, in summary, that a personal payment order should not be made as:

    Any penalties imposed will have a deterrent effect without the addition of non-indemnification orders, because the person upon whom they are imposed remains liable in law for the payment;

    The circumstances and nature of the current contraventions are not such as to warrant the making of such orders; and

    The prior contraventions occurred at around the same time as the present contraventions. This is not a case where the contravening conduct has continued after the imposition of penalties.

66    Further, the respondents submitted that, if ordered, the imposition of a personal payment order should be relevant to the quantum, and the second respondent should be given 90 days to make payment.

67    The power to order personal payment orders is discretionary, with the purpose being to achieve deterrence: 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].

68    In my view the conduct of the first and second respondents were comparable in nature and seriousness. The applicant has not sought a personal payment order against the first respondent. I do not see any particular conduct of the second respondent warranting such an order compared with the conduct of the first respondent.

69    I am not persuaded that a personal payment order ought to be made against the second respondent in the present circumstances.

Conclusion

70    For the reasons I have outlined above, I consider the following penalties to be appropriate:

    First Respondent: total amount of $14,000 for one contravention of s 500 and one contravention of s 503;

    Second Respondent: total amount of $7,000 for one contravention of s 500; and

    Third Respondent: total amount of $150,000 for two contraventions of s 500 and one contravention of s 503.

71    All pecuniary penalties are to be payable to the Consolidated Revenue Fund of the Commonwealth within 30 days.

Associate:    

Dated:    15 December 2023