FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Yatala Labour Prison Case) (No 3) [2024] FCA 732
ORDERS
Applicant | ||
AND: | CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent WYATT DANIEL RAYMOUNT Second Respondent (and others named in the Schedule) | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. On 30 August 2021, Wyatt Daniel Raymount contravened s 500 of the Fair Work Act 2009 (Cth) (FW Act) at the Yatala Labour Prison Site by acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the FW Act by:
(a) Stating to representatives of the Contractor (Mossop) “you’re useless”; “you’re incompetent”; “you’re trying to kill people”; “you’re shit at your job”;
(b) Stating to the representatives of Mossop, “Luis you are fucking useless at your job, I can’t believe you call yourself a professional, you should be ashamed”;
(c) By walking up to a representative of Mossop so as to be standing 30 to 40cms away from him and saying, “You are useless at your job. How can you get up every morning and do a shit job?; and
(d) Saying to a representative of Mossop words to the effect, “The whole site is a death trap. I wouldn’t bother going back to work because there’s no point”.
2. On 30 August 2021, pursuant to ss 793 and 550 of the FW Act, the Construction, Forestry, Maritime, Mining and Energy Union contravened s 500 of the FW Act in relation to the contravention set out in paragraph 1 above.
3. On 31 August 2023, Wyatt Daniel Raymount contravened s 500 of the FW Act at the Site by acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the FW Act when he entered the Building E exclusion zone when requested not to do so.
4. On 31 August 2021, Travis Alton Brook contravened s 500 of the FW Act at the Site by acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the FW Act when he entered the Building E exclusion zone when requested not to do so.
5. On 31 August 2021, the Union contravened s 500 of the FW Act, pursuant to ss 793 and 550 of the FW Act in relation to each of the contraventions set out in paragraphs 3 and 4 above.
6. On 2 September 2021, Desmond Taivairanga Savage contravened s 340 of the FW Act at the Site by taking adverse action against a representative of Mossop by positioning himself in a threatening manner and stating to that representative words to the effect, “The more you call your mates, the more I’ll come down on you”.
7. On 2 September 2021, the Union contravened s 340 of the FW Act pursuant to s 550 of the FW Act in relation to the contravention set out in paragraph 6 above.
8. On 2 September 2021, Wyatt Daniel Raymount contravened s 500 of the FW Act at the Site by acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the FW Act by making an improper statement to a representative of Mossop.
9. On 2 September 2021, the Union contravened s 500 of the FW Act, pursuant to ss 793 and 550 of the FW Act in relation to the contravention set out in paragraph 8 above.
THE COURT ORDERS THAT:
1. The first respondent is to pay pecuniary penalties totalling TWO HUNDRED AND THIRTEEN THOUSAND EIGHT HUNDRED AND FORTY DOLLARS ($213,840).
2. The second respondent is to pay pecuniary penalties totalling EIGHTEEN THOUSAND NINE HUNDRED DOLLARS ($18,900).
3. The fourth respondent is to pay pecuniary penalties totalling SEVEN THOUSAND TWO HUNDRED DOLLARS ($7,200).
4. The fifth respondent is to pay pecuniary penalties totalling SEVEN THOUSAND SIX HUNDRED DOLLARS ($7,600).
5. Pursuant to s 546(3) of the FW Act, the respondents are to pay the Commonwealth of Australia within 28 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
O’SULLIVAN J:
1 Prior to 6 December 2022, the Australian Building and Construction Commissioner was a statutory appointee of the Commonwealth pursuant to s 21 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) and an Australian Building and Construction Inspector (s 66(3) BCIIP Act).
2 The Fair Work Ombudsman was substituted as the applicant to these proceedings on 6 December 2022, pursuant to item 323(1) of Schedule 1 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).
3 By her further amended originating application filed 18 July 2023, the Ombudsman seeks declarations by the Court and the imposition of pecuniary penalties in relation to contraventions by the respondents of ss 340 and 500 of the Fair Work Act 2009 (Cth) (FW Act).
4 At the relevant time, the first respondent then known as the Construction, Forestry, Maritime and Energy Union was an organisation of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) and, by operation of s 27 of that Act, a body corporate such that it was capable of being sued in its registered name. The Union was at all relevant times an ‘industrial association’ allowing membership by ‘building employees’, a ‘building association’, a ‘building industry participant’, and a ‘constitutionally-covered entity’, all within the meaning of s 5 of the BCIIP Act.
5 The second respondent, Wyatt Daniel Raymount, is no longer employed by the Union, does not currently have any intention to recommence employment with the Union, and no longer works in the construction industry. Currently, he does not hold a right of entry permit, nor does he have any intention to re-apply for one. He no longer works in the construction industry.
6 Between August and September 2021, Mr Raymount was at all relevant times:
(a) An ‘officer’ of the Union for the purposes of s 793 of the FW Act (as defined in s 12 of the FW Act);
(b) A ‘building industry participant’ within the meaning of s 5 of the BCIIP Act;
(c) A ‘permit holder’ within the meaning of s 12 of the FW Act;
(d) A ‘WHS entry permit holder’ within the meaning of s 4 of the Work Health and Safety Act 2012 (SA) (WHS Act);
(e) By reason of his status as a permit holder and WHS entry permit holder, taken to know of his rights and obligations under the FW Act and the WHS Act; and
(f) In relation to all matters the subject of these proceedings was for the purpose of s 793 of the FW Act, acting in his capacity, and within the scope of his authority, as an officer of the Union.
7 The fourth respondent, Travis Alton Brook, is employed by the Union as an organiser, however, he does not hold a leadership position. He currently holds right of entry permits issued pursuant to the FW Act and the WHS Act, respectively.
8 Between August and September 2021, Mr Brook was at all relevant times:
(a) An ‘officer’ of the Union for the purposes of s 793 of the FW Act (as defined in s 12 of the FW Act);
(b) A ‘building industry participant’ within the meaning of s 5 of the BCIIP Act;
(c) A ‘permit holder’ within the meaning of s 12 of the FW Act;
(d) A ‘WHS entry permit holder’ within the meaning of s 4 of the WHS Act;
(e) By reason of his status as a permit holder and WHS entry permit holder, taken to know of his rights and obligations under the FW Act and the WHS Act; and
(f) In relation to all matters the subject of these proceedings was for the purpose of s 793 of the FW Act, acting in his capacity, and within the scope of his authority, as an officer of the Union.
9 The fifth respondent, Desmond Taivairanga Savage, is no longer employed by the Union, nor does he currently have any intention to recommence employment with the Union. Currently, he does not hold a right of entry permit, nor does he have any intention to obtain one. He is a worksite delegate of the Queensland and Northern Territory Divisional Branch of the Union.
10 Between August and September 2021, Mr Savage was at all relevant times:
(a) An ‘officer’ of the Union for the purposes of s 793 of the FW Act (as defined in s 12 of the FW Act);
(b) A ‘building industry participant’ within the meaning of s 5 of the BCIIP Act;
(c) A ‘permit holder’ within the meaning of s 12 of the FW Act;
(d) A ‘WHS entry permit holder’ within the meaning of s 4 of the WHS Act;
(e) By reason of his status as a permit holder and WHS entry permit holder, taken to know of his rights and obligations under the FW Act and the WHS Act; and
(f) In relation to all matters the subject of these proceedings was for the purpose of s 793 of the FW Act, acting in his capacity, and within the scope of his authority, as an officer of the Union.
11 The trial in this matter commenced on 20 March 2023 and proceeded for six days. Some time after the Ombudsman had closed her case, the Court was informed that the parties had reached agreement as to liability whereby the respondents admitted ten contraventions and the Ombudsman withdrew all allegations of contravention against the then third respondent, Alexandria Jamie Russell.
12 Subsequently, the Ombudsman served a further amended originating application and fourth further amended statement of claim to which the respondents filed a further amended defence. In that defence, the respondents admitted the allegations made by the Ombudsman. The parties also filed a joint statement of agreed facts.
13 The proceedings were adjourned to a penalty hearing.
FACTUAL FINDINGS
14 I find the following facts proved based on the allegations set out in the fourth further amended statement of claim, the admissions within the further amended defence, and the statement of agreed facts.
The Union
15 By reason of Mr Raymount, Mr Brook and Mr Savage (individual respondents) being officers of the Union pursuant to ss 363 and 793 of the FW Act, the actions and conduct of the individual respondents as set out in my factual findings which follow were also the actions and conduct of the Union. Further, the Union possessed the same state of mind as the individual respondents in relation to their actions and conduct set out in my factual findings (ss 363, 793 FW Act).
16 The individual respondents were aware and had knowledge of:
(a) their actions (and the actions of others whom they witnessed) as alleged in the fourth amended statement of claim and as set out in my factual findings; and
(b) the essential facts and matters necessary to establish each of the contraventions of ss 340 and 500 of the FW Act as alleged in the fourth amended statement of claim and as set out in my factual findings.
17 The individual respondents, and therefore the Union, knew at all relevant times in August and September 2021 that:
(a) Each of them was a ‘permit holder’ under the FW Act;
(b) Each of them entered the Yatala Labour Prison Site and exercised, or sought to exercise, rights in accordance with Part 3-4 of the FW Act; and
(c) Each of them engaged in the conduct set out in the factual findings.
18 Pursuant to s 550 of the FW Act, the Union was knowingly concerned in the conduct of the individual respondents and was, therefore, ‘involved in’ their contraventions of s 500 of the FW Act.
Background and contravening conduct
19 In early 2020, Mossop Group Pty Ltd was engaged by the State of South Australia as the Head Contractor for construction works relating to the redevelopment of the Yatala Labour Prison in Northfield, South Australia (Project). The construction works involved the reinforcement of existing prison infrastructure as well as the construction of two new cell blocks.
20 At all relevant times, being August and September 2021, the following individuals were employed by Mossop:
(a) Matthew Sweeney as the Safety Supervisor for the project;
(b) Luis Simoes as State Quality Health Safety Environment Manager;
(c) Damian Gesuato as Site Manager; and
(d) Matthew Holden as Site Engineer.
21 The conduct of Mr Sweeney, Mr Simoes, Mr Gesuato and Mr Holden is attributable to Mossop (s 793 FW Act).
22 At all relevant times, at least one of the workers performing work on the Project was eligible to be a member of the Union, was entitled to have the Union represent their industrial interests and, therefore, was a ‘relevant worker’ within the meaning of s 117 of the WHS Act.
30 August 2021
23 On 30 August 2021, Mr Raymount and Mr Brook arrived at the Site around 7.05am and attended the Site’s Safety Office. They issued a notice of entry detailing suspected contraventions of the WHS Act and produced Federal and State entry permits to Mr Sweeney.
24 In attending the site on 30 August 2021, Mr Raymount and Mr Brook were exercising their rights in accordance with Part 3-4 of the FW Act.
25 Mr Raymount and Mr Brook entered the Site and walked around the outside of various buildings looking at access and egress (Site walk). Throughout the duration of their time on Site they were accompanied by either Mr Sweeney, Mr Gesuato or both.
26 The Union officials who entered the Site on 30 August 2021, which included Mr Raymount and Mr Brook, raised a number of safety issues whilst on Site that were either addressed immediately or noted. Those safety issues included the following:
(a) The sufficiency of a barrier comprised of water barriers;
(b) Missing handrails where handrails were required;
(c) The absence on Site of three of the four individuals identified as emergency contacts on the emergency contact board;
(d) The absence of signage identifying exclusion zones and the adequacy of demarcation of exclusion zones;
(e) A faulty electrical board; and
(f) Safe access for roofers to a part of the Site.
Statements to Mr Sweeney
27 During his time on Site on 30 August 2021, Mr Raymount made the following statements to Mr Sweeney: “you’re useless”, “you’re incompetent”, “you’re trying to kill people”, and “you’re shit at your job”.
28 Following the Site walk, while inside the Site’s safety office, Mr Raymount said to Mr Sweeney, “The whole site is a death trap. I wouldn’t bother going back to work because there’s no point”.
29 The statements made by Mr Raymount to Mr Sweeney set out in above were abusive, derogatory and offensive.
Statements to Mr Gesuato
30 Whilst on site, Mr Raymount said to Mr Gesuato, “you’re incompetent”.
31 That statement was abusive, derogatory and offensive.
Statements to Mr Simoes
32 During the Site walk, Mr Raymount said to Mr Simoes, “Luis you are fucking useless at your job, I can’t believe you call yourself a professional, you should be ashamed”. Further, Mr Raymount walked directly up to Mr Simoes and while standing 30 to 40 cm from him said, “You are useless at your job. How can you get up every morning and do a shit job?”
33 Those statements by Mr Raymount to Mr Simoes were abusive, derogatory and offensive.
34 Mr Raymount and Mr Brook left the site between 2.00pm and 2.30pm.
35 In acting as set out in [27]-[33] above, Mr Raymount acted in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act, contrary to s 500 of the FW Act.
36 By reason of the matters set out in [15]-[18] above, the Union was directly or indirectly, knowingly concerned in or party to Mr Raymount’s contravention of s 500 of the FW Act.
31 August 2021
37 On 31 August 2021, Mr Raymount and Mr Brook returned to the Site wearing their Federal and State entry permits on lanyards around their necks and issued to Mr Sweeney a notice of entry detailing suspected contraventions of the WHS Act.
38 The Union officials who entered the Site on 31 August 2021, which included Mr Raymount and Mr Brook, identified the following safety breaches while on Site:
(a) The adequacy of water barriers that had not been and were incapable of being filled;
(b) The availability of safe access from the area of the concrete pour;
(c) The absence of drinking water available to the workers on site; and
(d) Working from heights on the roof.
Building E exclusion zone
39 A concrete pour was scheduled to take place at a location near Building E on the Site at around midday. Mr Raymount and Mr Brook walked to Building E accompanied by Mr Holden.
40 When they entered Building E, there was no exclusion zone in place.
41 Shortly before the scheduled commencement of the concrete pour, Mr Raymount and Mr Brook raised an issue with Mr Holden with respect to the adequacy of stretcher access to the pour area. Once Mr Holden considered that the issue had been appropriately addressed, he authorised the concrete pour to go ahead.
42 After the concrete pour, Mr Raymount and Mr Brook walked with Mr Holden through Building E towards its northern exit and reached an exclusion zone (Building E exclusion zone).
43 The Building E exclusion zone was blocked off by a water-filled plastic orange barrier and a steel barrier (barriers), both measuring 1.2 metres in height. The Building E exclusion zone was in place to protect people from entering the area as welding was being conducted above it causing sparks to fly in the area.
44 Mr Raymount lifted the steel barrier and pulled it back towards him. He and Mr Brook then entered the Building E exclusion zone. As they were doing so, Mr Holden said to them in words to the effect that the area was an exclusion zone and they needed to come back.
45 The water-filled plastic orange barrier and the steel barrier marked out and blocked off the Building E exclusion zone. That, together with Mr Holden’s statement referred to in [44] above, was such that Mossop made a request that Mr Raymount and Mr Brook comply with the Building E exclusion zone requirement (Building E exclusion zone request).
46 The Building E exclusion zone request was partly oral by reason of Mr Holden’s statement in [44] above and partly implied from the circumstances, namely the fact of the barriers, the fact that welding work was taking place in the Building E exclusion zone at the time, and that both Mr Raymount and Mr Brook were officials of the Union.
47 The Building E exclusion zone request was reasonable in the circumstances in that:
(a) the Building E exclusion zone requirement had a legitimate and important purpose of reducing risks to health and safety presented by a person entering a zone with sparks flying around and was seeking to achieve that purpose; and
(b) the consequences of non-compliance could be serious and compliance was easy.
48 Mr Raymount and Mr Brook each refused to comply with the Building E exclusion zone request and remained in the Building E exclusion zone for no more than 20 seconds.
49 By engaging in the conduct set out at [44]-[48] above, each of Mr Raymount and Mr Brook acted in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act.
50 In the circumstances, each of Mr Raymount and Mr Brook contravened s 500 of the FW Act.
51 By reason of the matters set out in [15]-[18] above, the Union was directly or indirectly, knowingly concerned in or party to the contraventions of s 500 of the FW Act by Mr Raymount and Mr Brook.
1 September 2021
52 On 1 September 2021, Mr Simoes made a complaint to the Commissioner about the conduct of the Union officials at the Site by way of text message to its’ inspector, Mr Leo Kelly (Inspector Kelly) in the following terms:
Hi Kelly, Apologies for the message as am rushing to the Yatala project.
Union are on site again refusing to tell us where the suspected contravention occurred.
Mistreating my staff again. Will give you a call as soon as possible.
(Mr Simoes’ complaint)
53 In response to Mr Simoes’ complaint, Inspector Kelly attended the Site that day.
54 Mr Simoes’ complaint was made on behalf of Mr Sweeney and/or any other of Mossop’s employees who was or would be subject to mistreatment by the Union and constituted the exercise of a workplace right pursuant to s 341(1)(c)(i) of the FW Act.
2 September 2021
55 On 2 September 2021, Mr Raymount and Mr Savage attended the Site’s safety office wearing their Federal and State entry permits on lanyards around their necks and issued to Mr Sweeney a notice of entry detailing suspected contraventions of the WHS Act.
56 In attending the Site on 2 September 2021, Mr Raymount and Mr Savage were exercising their rights in accordance with Part 3-4 of the FW Act.
Statements by Mr Savage to Mr Sweeney
57 Shortly after arriving on Site, while standing in the area outside the Site’s office compound, Mr Savage walked up to Mr Sweeney, positioned himself in a threatening manner, and said words to the effect of, “The more you call your mates, the more I’ll come down on you” (Savage threat).
58 The reference in the Savage threat to “your mates” was a reference to Mossop, through Mr Simoes, contacting the Commissioner in relation to the attendance of the Union officials at the Site.
59 The Savage threat had the effect of directly, or indirectly, prejudicing Mr Sweeney in his employment as Mossop’s Safety Supervisor, in that it:
(a) threatened to prejudice his ability to feel safe and secure in his employment; and/or
(b) threatened to prejudice his ability to properly perform his duties for Mossop;
if he or someone else on behalf of Mossop contacted the Commissioner.
60 The Savage threat caused Mr Sweeney to be concerned about working on future jobs with Mossop, future Site visits from Mr Savage and what Mr Savage might do to him on those visits, such that Mr Savage took adverse action against Mr Sweeney contrary to ss 342(1) and 342(2)(a) of the FW Act.
61 By reason of the matters in [15]-[18] above, the Savage threat amounted to a contravention by the Union of s 340(1) of the FW Act.
Statement by Mr Raymount to Mr Sweeney
62 Later on in the morning of 2 September 2021, as Mr Sweeney was returning to the Site in his car, having left to collect supplies, Mr Raymount approached the car and knocked on the window. Mr Sweeney rolled down the window and had a conversation with Mr Raymount to the following effect:
Mr Raymount: You shouldn’t be making complaints. When there is a complaint, there’s normally an investigation, and if there’s an investigation, there’s a possibility of fines. That’s not just for Mossop that’s for you personally.
Mr Sweeney: Sorry mate I won’t be threatened at work, nobody deserves that.
Mr Raymount: Come on mate. Don’t be a cunt.
63 The statement by Mr Raymount, “Don’t be a cunt”, was:
(a) Abusive, derogatory and offensive; and
(b) Particularly improper in circumstances where Mr Sweeney was attempting to insist that he should not be intimidated at work.
64 By making this abusive statement, Mr Raymount acted in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act such that Mr Raymount contravened s 500 of the FW Act.
65 By reason of the matters set out in [15]-[18] above, the Union was directly or indirectly, knowingly concerned in or party to Mr Raymount’s contravention of s 500 of the FW Act.
PRINCIPLES
66 Section 546 of the FW Act provides that this Court may order a person to pay a pecuniary penalty for contravention of a civil penalty provision that it “considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision”.
67 The principles relating to the imposition of pecuniary penalties are well-known.
68 The following factors to which regard may be had in assessing a penalty of appropriate deterrent value were listed by French J (as his Honour then was) in Trade Practices Commission v CSR Ltd [1990] FCA 762 (at 52, 152–52, 153):
(1) The nature and extent of the contravening conduct.
(2) The amount of loss or damage caused.
(3) The circumstances in which the conduct took place.
(4) The size of the contravening company.
(5) The degree of power it has, as evidenced by its market share and ease of entry into the market.
(6) The deliberateness of the contravention and the period over which it extended.
(7) Whether the contravention arose out of the conduct of senior management or at a lower level.
(8) Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.
(9) Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.
69 In Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, (2022) 274 CLR 450, the High Court considered the approach to the imposition of pecuniary penalties under s 546 of the FW Act and, as part of that consideration, the circumstances in which a court might impose the maximum pecuniary penalty. The majority (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) said, “civil penalties are imposed primarily, if not solely, for the purpose of deterrence” (at [15]) and referred (at [15] and [42]) to the statement by the plurality in the Commonwealth v Directors, Fair Work Building Industry Inspectorate (the “Agreed Penalties Case”) [2015] HCA 46; (2015) 258 CLR 482, 506 [55] that civil penalties “are not retributive, but rather are protective of the public interest in that they aim to secure compliance by deterring repeat contraventions”.
70 The majority in Pattinson highlighted the importance of not using the factors set out by French J in CSR as a rigid legal checklist but, rather, to determine “what is an ‘appropriate’ penalty in the circumstances of the particular case” (at [19]).
71 Referring with approval to Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 (at [156]), the High Court in Pattinson explained that the prescribed maximum penalty, “while important, is but one yardstick that ordinarily must be applied” (at [53]). The majority further emphasised that what is required in the consideration of the quantum of a penalty is that there be “some reasonable relationship between the theoretical maximum and the final penalty imposed” (at [55]).
72 In Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640, 659 (at [66]), the High Court (French CJ, Crennan, Bell and Keane JJ) cited with approval Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249, 265 (at [62]), and observed that a civil penalty “must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”.
73 In determining whether the maximum level of deterrence is called for, both the circumstances of the contravenor and the circumstances of the contravention may be relevant, however as the majority in Pattinson explained, they are not exclusive considerations: (at [58]-[59])
[...] Once it is accepted, as it must be, that the maximum penalty is intended by the Act to be imposed in respect of a contravention warranting the strongest deterrence within the prescribed cap, there is no warrant for the court to ascertain the extent of the necessity for deterrence by reference exclusively to the circumstances of the contravention. The categories of circumstances may overlap, in that matters may bear upon both the seriousness of the contravention and the intransigence of the contravenor. Further, circumstances which can be said to relate exclusively to the contravenor may bear strongly on what level of deterrence will be “appropriate”.
[...] It is not necessary that the task of setting a penalty that is “appropriate” to deter further contraventions should proceed by considering characteristics of the contravenor only to the extent that they can be said to bear upon the seriousness of the contravening conduct.
74 It is also important to note that principles of general deterrence apply equally to circumstances in which the contravenor is vicariously, rather than directly or personally liable (Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; (2010) 185 FCR 308, per Besanko and Gordon JJ (at [52]-[53])).
THE PARTIES’ SUBMISSIONS AND CONSIDERATION
75 The parties agree that the contravening conduct did not result in any stoppage of work at the Site, nor any economic loss. I accept those facts.
30 August 2021 – Mr Raymount
76 The Ombudsman submits that Mr Raymount’s abusive, derogatory and offensive comments to Mr Sweeney on 30 August 2021 constituted conduct of a permit holder in contravention of s 500 of the FW Act. She submits that this contravention by Mr Raymount is objectively serious.
77 The Ombudsman submits further that Mr Raymount’s abusive, derogatory and offensive comments are such that they fall well below the standard that should be expected of someone in Mr Raymount’s position, exercising a right to enter a private premises pursuant to a permit issued under Commonwealth and State Legislation, and on the basis that he was a fit and proper person to exercise such a right.
78 The Ombudsman submits that the purpose of Mr Raymount’s attendance on Site, being to inspect legitimate safety concerns, cannot be mitigatory as the legislative scheme giving rise to his right of entry is premised on the permit holder having a legitimate purpose for entering the premises. The Ombudsman submits that Mr Raymount’s conduct cannot be explained by his desire to improve the prospects of having safety issues at the Site addressed for the following reasons:
(a) First, the safety issues raised by Mr Raymount were immediately addressed or noted by Mossop’s employees;
(b) Second, the relevant comments were not made in the heat of the moment but rather as part of a series of comments made throughout his Site visit on 30 August 2021; and
(c) Third, the comments were made in circumstances where there was no suggestion that there was risk of imminent harm to health and safety.
79 I accept those submissions.
80 The respondents submit that the following matters go to the nature, extent and circumstances of Mr Raymount’s contravening conduct.
81 First, Mr Raymount was on Site for approximately seven hours (accompanied by representatives of Mossop at all times) and, for the majority of that time, his conduct was not improper. The respondents say that the contravention arose from “isolated and relatively brief episodes of offensiveness punctuating an otherwise unremarkable attendance”.
82 I accept that submission but consider it does not serve to mitigate the seriousness of the contravening conduct.
83 Second, the offensive comments were made in the context of individual respondents identifying safety concerns on Site and were not merely abuse.
84 I accept there were safety concerns on Site and to that extent, Mr Raymount and the Union played an important role, but it does not justify abusive, derogatory and offensive comments to Mr Sweeney, Mr Gesuato and Mr Simoes.
85 Third, the offensive comments were made in the context of a building site where, from time to time, robust language is used and frustration is expressed using forceful language. That may be so, but it is neither an excuse for conduct in the nature of the contravening conduct, nor a licence to engage in that type of conduct. Quite simply, it was direct, forceful and personal verbal abuse.
86 As to whether the conduct was deliberate, the respondents submit that, though they do not suggest that Mr Raymount mis-spoke on 30 August 2021, his comments were generally reactive to circumstances rather than deliberate in the sense of premeditated. They submit further that his offensive comments were intermittent rather than persistent.
87 I accept the respondents’ submissions that the comments were intermittent in that there was not a steady stream of abuse, but I do not accept the abusive and derogatory comments were other than deliberate. I am prepared to infer that on 30 August 2021, there was an element of Mr Raymount reacting to safety concerns observed on Site but that does not excuse the behaviour.
88 The respondents submit Mr Raymount does not have prior history of contravening the FW Act. They informed the Court that he is no longer employed by the Union, does not have any intention to recommence employment with the Union, no longer has a right of entry permit, and does not intend to apply for one.
89 The Ombudsman submits that although these factors reduce the need for specific deterrence, which I accept, nonetheless, general deterrence plays a significant role in respect of what the Ombudsman described as “deliberate, brazen and repeated unlawful conduct” of an official of the Union with apparent disregard for the consequences. I accept that description of the conduct and the submission.
90 The Ombudsman submits further that Mr Raymount’s contravening conduct the subject of these proceedings occurred over three days, during which time he had the opportunity to reflect, yet he continued to contravene. I accept that submission but keep in mind I am here dealing with penalty for Mr Raymount’s actions on 30 August 2021.
31 August 2021 – Mr Raymount and Mr Brook
91 The Ombudsman submits that Mr Raymount and Mr Brook’s conduct on 31 August 2021 amounts to serious contraventions of s 500 of the FW Act given the resulting risk to health and safety as well as their actions being inconsistent with the purpose for which the legislation gave them a right to enter the Site.
92 The Ombudsman submits that despite the contravention on 31 August 2021 constituting an isolated event, the relevant context is that the conduct follows Mr Raymount’s abusive and derogatory comments to employees of Mossop over what he described as their incompetence in addressing safety issues at the Site the previous day. Nonetheless, the next day Mr Raymount and Mr Brook refused to comply with a safety measure Mossop had taken and thereby created a risk to health and safety. I accept that submission insofar as it relates to Mr Raymount.
93 The Ombudsman submits that Mr Raymount’s contravening conduct on 31 August 2021 demonstrates that he was prepared to ignore reasonable health and safety requirements at the Site when it suited him.
94 I accept that submission and I consider the same applies to Mr Brook.
95 In respect of the nature, extent and circumstances of Mr Raymount and Mr Brook’s contravening conduct, the respondents submit that the area was not an exclusion zone when Mr Raymount and Mr Brook entered Building E. I have found that as a fact.
96 The respondents point to the identification of safety issues during Mr Raymount and Mr Brook’s Site visit on 31 August 2021, as well as the absence of any pleading by the Ombudsman that there was signage to indicate to them that the area was in fact an exclusion zone or that hazardous work was being undertaken in the area.
97 Whereas I accept there was no pleading of signage, the facts as I have found them are that there was an orange water-filled barrier and a steel barrier barring their way. Notwithstanding the request by Mr Holden that they not enter the Building E exclusion zone, nonetheless, they entered it and remained in the area for no more than 20 seconds.
98 The respondents accept that Mr Raymount and Mr Brook’s conduct in entering the Building E exclusion zone was deliberate. However, they submit that Mr Raymount and Mr Brook leaving the area as soon as advised by Mr Holden that it was an exclusion zone, as well as the absence of signs indicating that the area was an exclusion zone, suggested that, until advised, they did not appreciate that they should not have been in that area. The respondents further submit that the conduct is “almost de minimis”.
99 I do not accept those submissions. This was an area set up as an exclusion zone because of hot work being undertaken. The entry into the area, which required Mr Raymount to physically move the steel barrier which had been put in place, was at best irresponsible and at worst demonstrates a complete disregard for not only the safety of Mr Raymount and Mr Brook, but also the safety of others who, I infer, are likely to have been distracted from their work because of the unauthorised and unexpected entry into the exclusion zone of others. On no view could this contravening conduct be described as “de minimis”.
100 The respondents rely on Mr Raymount’s circumstances summarised above, at [88].
101 Mr Brook’s relevant circumstances are that he had no history of contravening the FW Act prior to the admitted contravention of 31 August 2021. The respondents submit that at the time of filing their written submissions in November 2023, Mr Brook had admitted one contravention of each of ss 499 and 500 of the FW Act (relating to a course of conduct on 15 December 2021 in another matter) that was then before the Court. I note that matter but give it no weight as it comprises conduct which occurred after the contravening conduct in this matter.
102 Mr Brook remains employed by the Union as an organiser, however he is not employed in any position of leadership. He continues to hold right of entry permits pursuant to the FW Act and WHS Act.
103 Mr Brook has undertaken training with Mr Brian Lacy AO in relation to his rights and obligations of a permit holder under Part 3-4 of the FW Act, with reference to his contravening conduct the subject of these proceedings. I take that into account and give him and the Union credit for that initiative.
2 September 2021 – Mr Savage and Mr Raymount
Mr Savage
104 The parties agree that Mr Savage should be ordered to pay a pecuniary penalty of $7,600 in respect of his adverse action on 2 September 2021.
105 In support of the agreed quantum, the Ombudsman submits that Mr Savage’s adverse action on 2 September 2021 amounts to particularly iniquitous conduct as it was aimed at punishing Mr Sweeney for invoking the legitimate workplace right of obtaining assistance from a statutory regulator in relation to the mistreatment of Mossop’s employees by Union officials. The Ombudsman submits that Mr Savage’s adverse action constitutes unlawful, retributive conduct that falls at the high end of seriousness.
106 Mr Savage has previously been found by the Court to have contravened the FW Act “by repeatedly swearing at, and speaking in an aggressive and bullying manner” to an employee of the head contractor on a construction site: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951, per White J (at [31]).
107 Judgment in the Adelaide Airport Case was delivered approximately two weeks prior to Mr Savage’s conduct on 2 September 2021.
108 The Ombudsman submits further that significant deterrence is required in respect of Mr Savage, given the mid-range penalty imposed by White J in the Adelaide Airport Case does not appear to have had any deterrent effect on Mr Savage and given the need to deter others from engaging in similarly serious and brazen conduct.
109 I note that on 10 September 2021, Mr Savage received training from Mr Lacy, including with respect to the rights and obligations of a permit holder under the FW Act. In his report dated 8 November 2023, Mr Lacy states that Mr Savage acknowledged and understood that he must not conduct himself in an improper manner and understood the concept of acting in an improper manner. I take that submission into account and give Mr Savage and the Union credit for that initiative.
110 In support of the appropriateness of the agreed quantum of penalty for Mr Savage’s contravention of 2 September 2021, the respondents also referred to Mr Savage’s previous contravention of the FW Act. They informed the Court that he is no longer employed by the Union and does not currently hold a right of entry permit.
111 Mr Savage’s behaviour was intended to intimidate and was directed at preventing Mr Sweeney, through Mossop, from complaining about the Union officer’s behaviour and can only be described as thuggish.
112 I am satisfied that an appropriate penalty for Mr Savage’s contravention of s 340 is the agreed sum of $7,600.
Mr Raymount
113 The Ombudsman repeats her submissions made in relation to Mr Raymount’s contravention on 30 August 2021 with respect to Mr Raymount’s contravention of s 500 of the FW Act on 2 September 2021. She submits that the contravention is objectively serious.
114 The Ombudsman submits further that Mr Raymount’s contravention of 2 September 2021 does not relate to any safety issues and demonstrates that he was prepared to make abusive, derogatory and offensive comments in the absence of any safety imperatives.
115 The respondents submit that the nature, extent and circumstances of Mr Raymount’s contravening conduct on 2 September 2021 are such that the derogatory comment was made in the context of “a discussion concerning investigations”. The respondents submit that, although Mr Raymount used offensive language, it was not in the nature of mere abuse but rather a request that Mr Sweeney change his intended course of action. They submit that there was an element of friendliness to the comment due to the introductory words, “Come on mate”. They accept the statement was offensive and improper but different, for example, from Mr Raymount simply abusing Mr Sweeney. The respondents submit that there is no suggestion that the statement was made aggressively but accept the conduct was deliberate and there is no suggestion that Mr Raymount mis-spoke.
116 I do not accept those submissions. Mr Sweeney was the object of abuse by Mr Raymount following a report to the Commissioner. On its terms, the statements by Mr Raymount were intended to intimidate Mr Sweeney as a direct consequence of a complaint to the Commissioner and were made in the context of Mr Sweeney relying on his fundamental rights as an employee. The entire context of the exchange, including of course Mr Raymount’s use of obnoxious and foul language, was completely inappropriate.
117 The respondents rely on Mr Raymount’s circumstances, summarised above, at [88].
The Union
118 The Ombudsman’s written submissions address the size and history of the Union. She submits that the Union is a large, prominent and influential national union that is both cash and asset rich. I accept that submission.
119 The Ombudsman submits that the Union has sufficient means to pay any penalties imposed by the Court and refers to observations of Flick J in considering the appropriateness of the quantum of civil penalties to be imposed on the Union in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2018] FCA 1563 (at [142]):
No conclusion is open, with respect, other than that the CFMEU has the financial resources available to it to continue paying all such penalties as may be ordered by this Court and that all such penalties are simply regarded by the CFMEU as an “acceptable cost of doing business”[.]
120 The Ombudsman refers to the following matters in which courts have made observations about the nature of the Union’s size, role and favourable status as a registered organisation under the FW Act: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226, per Tracey J (at [28] – [30]); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458, per Dowsett and Rares JJ (at [98]); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235, per Tracey J (at [25]); Australian Building and Construction Commissioner v Moses (No 2) [2017] FCCA 2738, per Jarrett J (at [39]).
121 The Ombudsman also refers to Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173, and submits that unlawful conduct has been normalised within the Union whose previous contraventions of the civil penalty provisions of the FW Act demonstrate that there exists “an organisational culture in which contraventions of the law have become normalised” (at [29]). She submits further that a “pervasive culture of disregard for industrial law has manifested in the conduct of [the Union’s] officials”. I accept that submission.
122 As is often the case in matters such as this, the Ombudsman attaches to her written submissions a table summarising prior penalties and declarations under industrial laws involving the Union or its’ representatives in some 205 matters (table of the Union’s prior contravening conduct). By any measure, it is an extraordinary history of prior contravening conduct.
123 The respondents acknowledge the fact that the Union is large, well-resourced and plays a prominent role in Australia’s industrial relations system.
124 They also refer to what they described as the Union’s “reasonably substantial history of contravention” of the FW Act that is set out in the table of the Union’s prior contravening conduct.
125 The respondents submit that the Union’s history of contravention is an indication that it has regarded the payment of penalties as an “acceptable cost of doing business”, as explained by the majority of the High Court in Pattinson (at [43]). They submit further that the appropriateness of a penalty approaching the maximum turns on whether the contraventions can be said to be part of a strategy of the Union choosing to pay penalties rather than obey the law, and whether the contraventions are a manifestation of that which the Court has described as the Unions demonstrating indifference to obeying the law.
126 The respondents submit that a relevant factor in determining the quantum of the penalties to be imposed on the Union in these proceedings is that its’ contraventions do not involve any person in a position of senior authority. I note that submission but observe that it does not mitigate or excuse in any way the Union’s behaviour through its’ officers.
127 With respect to the penalties to be paid by the Union for the contravening conduct of the individual respondents, the respondents make the following submissions.
Raymount and Brook – 31 August 2021 conduct
128 The respondents submit that the nature of the conduct is significant but, on that occasion, the contravening conduct was brief and involved an element of inadvertence. I accept the nature of the contravening conduct was significant and was brief. It is for the reasons I have set out above that I do not accept the conduct was due to inadvertence in whole or in part.
129 The respondents again refer to the fact that there was no signage identifying the Building E exclusion zone or indicating that hazardous work was being undertaken and the fact that Mr Raymount and Mr Brook left the Building E exclusion zone as soon as they were alerted to the safety issue.
130 In view of the factual findings I have made consequent upon the respondents’ admissions, I do not accept Mr Raymount and Mr Brook left the Building E exclusion zone as soon as they were alerted to it. On the contrary, they were warned as they entered the Building E exclusion zone but continued nonetheless.
131 The respondents submit that the circumstances of the contravening conduct do not lead to the conclusion that it amounts to a further manifestation of the Union’s indifference to obeying the law. I do not accept that submission. In my view, it is a manifestation of the Union’s attitude that it is above the law.
132 The respondents rely on the fact that the Union does not have a history of entry into exclusion zones or disregard for safety requirements, rather a strong history of seeking enforcement of appropriate safety requirements. That submission ignores the deliberate actions of Mr Raymount in lifting a steel barrier to enter the Building E exclusion zone and he and Mr Brook entering it against the request of Mr Holden.
Mr Savage and Mr Raymount – 2 September 2021 conduct
133 The Union submits that although there are aspects of Mr Savage’s conduct that have previously been the subject of disapproval, such considerations do not apply with the same force to the conduct of Mr Raymount. I accept the conduct in both cases is different.
134 On the basis that Mr Savage and Mr Raymount’s conduct is penalised separately, the respondents submit that Mr Raymount’s contravening conduct was not intimidatory or aggressive, caused no loss, and cannot be said to have had a strategic purpose but rather involved “a strange, likely unique, combination of friendliness and abuse”. They submit that it is not improper conduct of a serious nature but was a somewhat unique episode of conduct that cannot be said to amount to a further manifestation of the Union’s indifference to obeying the law.
135 I do not accept that submission. Although I accept Mr Raymount’s conduct was not of the same physically threatening behaviour as that of Mr Savage, nonetheless, it was a warning that by complaining, Mr Sweeney was exposing himself to an investigation and the possibility of a fine. It was directed at trying to stop Mr Sweeney from complaining to the Ombudsman.
Course of conduct
136 The Ombudsman submits that the “course of conduct principle” set out by the Full Court of this Court in Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203; (2018) 267 FCR 40, per Allsop CJ, Collier and Rangiah JJ (at [91]), “is to avoid double punishment”. I accept that statement of principle.
137 The Ombudsman submits, relying on Construction Forestry and Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1, per Gordon and Middleton JJ (at [39]), that the course of conduct principle is of assistance, “where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged” (emphasis in original).
138 The Ombudsman also refers to Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83, in which case McKerracher J explained (at [160]) that “grouping contraventions does not convert the maximum penalty for one contravention into the maximum penalty for the course of conduct as a whole.” The Ombudsman relies on the following passage from the reasons of Allsop CJ (with which Griffiths J agreed) in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 59 (at [12]):
A conclusion that there is such an interrelationship or overlap, and so, to use the expression, a course of conduct, does not mark the end of the enquiry, but the beginning of one: How, given the nature of the interrelationship or overlap, should that affect the proper fixing of penalties for the found contraventions so as to avoid multiple punishment for the same offending?
139 The Ombudsman submits, that subject to one exception, the instances of the respondents’ contravening conduct stand apart and there is no basis for the application of a reduction of the penalties imposed on them.
140 The Ombudsman submits that the exception is the contravening conduct of Mr Raymount and Mr Brook on 31 August 2021 in entering the Building E exclusion zone which should be treated as one course of conduct and result in a single penalty nearing the maximum amount for one contravention to be imposed on the Union. I accept that submission and will impose a single penalty on the Union for this contravention.
141 The respondents submit that, in addition to Mr Raymount and Mr Brook’s contraventions of 31 August 2021, the contraventions by Mr Savage and Mr Raymount of 2 September 2021 should be regarded as a course of conduct.
142 The respondents acknowledge that the two contraventions are of different sections of the FW Act and that the matter has been pleaded and admissions made on that basis. They submit, however that the substance of the alleged contraventions against (and admitted by) the Union is that two of its’ officials, at the same location and within a period of two hours, expressed views to the same person, attempting to persuade him not to make reports or seek investigation in relation to the Union’s attendance on site.
143 They say there is sufficient interrelationship between the factual and legal elements of the two contraventions and therefore, if more than one penalty was imposed, the Union would be penalised twice for the same conduct.
144 On that basis, the respondents submit that the contraventions of Mr Savage and Mr Raymount on 2 September 2021 should be considered as part of a course of conduct and one penalty should be imposed on the Union.
145 I do not accept that submission. The actions of Mr Savage and Mr Raymount that day were separate and independent with the actions of Mr Savage constituting physical as well as verbal intimidation. On no view could they be considered a single course of conduct.
Allowances for admissions
146 The Ombudsman acknowledges that, although the respondents are entitled to have their admissions taken into account, they should be given limited weight due to the late stage at which they were made; that is after six days of trial and numerous days of hearings of interlocutory applications filed by the respondents. She submits that no more than 5% discount should be applied to the respondents’ penalties to account for their admissions.
147 In support of that submission, the Ombudsman relies on Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Boggo Road Cross River Rail Case) [2023] FCA 507, in which case the Court recognised that the utilitarian value of admissions “is based on the saving of court time” and the “advantages to the administration of justice that flow from the admissions” (at [52]). The Ombudsman submits that the utilitarian value of the respondents’ admissions is reduced by the “extremely late stage” at which they were made which she says justifies the application of a lesser discount.
148 The respondents submit that the reduction to be applied to their penalties should be in the order of 15% to 25% to give them appropriate credit for the admissions they have made.
149 They submit that the manner in which the Ombudsman pleaded the case required that it run a trial in order to reveal the limited episodes of contravening conduct that the Ombudsman could possibly prove. The respondents say that this is not a case where they have simply admitted contraventions in circumstances where there was no alleged prospect of any defence. The respondents point to the Ombudsman alleging 56 contraventions [sic 52] arising out of 16 incidents alleged against four individual officials.
150 The respondents submit further that, following the Ombudsman’s reduction in alleged contraventions, they moved promptly and efficiently to reach agreement on a limited number of contraventions. I accept the number of alleged contraventions reduced significantly but an approach to reach agreement was always open to the respondents.
151 The respondents submit further that in making admissions, they have acknowledged their wrongdoing, thereby saving the Court’s time and serving the broader interests of justice. The respondents submit that they should be given credit for their cooperation. As a general principle, I accept that submission, but its extent is limited in this matter given that the trial ran for six days prior to the respondents acknowledging their wrongful conduct.
Corrective behaviour
152 The respondents submit that the Union in South Australia and Victoria has instituted a regime whereby officials who have been found to have contravened the FW Act are required to undertake training in respect of their rights and obligations under Part 3-4. I accept that submission and give credit to Mr Savage, Mr Brook and the Union for that initiative.
153 In particular, I accept that the Union in Victoria has undertaken proactive training for a wide group of its’ officials in relation to their rights and obligations under Part 3-4 of the FW Act and the Union in South Australia has determined to institute similar proactive training. The respondents submit that the Union should be given credit for taking these corrective measures.
154 I accept that submission.
Contrition
155 No respondent has expressed any contrition for their conduct. The absence of contrition is a factor to be considered Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (the Non-Identification Personal Payment Case) [2018] FCAFC 97, (at [20]).
156 Nonetheless, although an expression of contrition is a recognised circumstance of mitigation, its absence is not a circumstance of aggravation: Director of Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432, per White J (at [87]).
157 The Ombudsman submits that the lack of evidence of apology, contrition, remorse, or expression of regret is a factor further weighing in favour of attaching limited weight to the respondents’ admissions. I accept that submission.
Totality
158 The Ombudsman submits that the totality principle requires the Court to conduct a final check of the total penalties to be imposed on each of the respondents. She submits that the Court may then adjust any individual penalties to ensure the total aggregate penalty is proportionate to the respondents’ wrongdoing viewed in its totality. The Ombudsman highlights, however that a consideration of totality is a discretionary exercise that does not require an effective reduction in penalty. I accept that submission.
159 The Ombudsman submits further that there is no basis for a reduction of penalties in these proceedings by virtue of the totality principle and that each contravention of the FW Act should be treated separately and distinctly. I accept that submission.
160 The respondents’ written submissions do not address totality beyond pointing out that regard may be had to the totality principle in addition to the course of conduct principle.
Penalties
161 The Ombudsman seeks orders pursuant to s 546 of the FW Act that appropriate pecuniary penalties be imposed on each of the respondents separately for each of their admitted contraventions of the FW Act.
162 The respondents admit to 10 contraventions and submit that eight penalties should be imposed. I do not accept that submission because although I consider the events of 31 August 2021 comprise a single course of conduct, the events of 2 September 2021 do not constitute a single course of conduct. As a result, I will impose one penalty on the Union for the contravening conduct on 31 August 2023.
Agreed penalty ranges
163 At the time of the contravening conduct, the value of a penalty unit was $222. With respect to the individual respondents, the maximum penalty that can be imposed for each contravention is $13,320 or 60 penalty units. The maximum penalty for each contravention by the Union is $66,600 or 300 penalty units.
164 The parties have agreed appropriate penalty ranges in respect of the individual respondents. With one exception, being the conduct of Mr Raymount and Mr Brook on 31 August 2021, I am satisfied those ranges are appropriate.
165 The Ombudsman included in her written submissions a table setting out the agreed penalty range and her proposed penalty for each admitted contravention.
166 The respondents also included in their written submissions a table that provided, in addition to the details set out in the table prepared by the Ombudsman, their proposed penalty for each of the admitted contraventions as well as the percentage of the maximum penalty that each proposed penalty figure represents.
167 I have taken the proposed penalties into account when determining what I consider to be an appropriate pecuniary penalty.
Quantum
168 I fix the following pecuniary penalties. In doing so, I take into account all the matters I have set out above.
30 August 2021
Mr Raymount
169 The parties agree that the appropriate penalty range is in the medium range. I am satisfied that is an appropriate range within which an appropriate penalty for Mr Raymount’s conduct on 30 August 2021 should be fixed: Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 651; Commonwealth v Director, Fair Work Building Industry Inspectorate (“Agreed Penalties Case”) [2015] HCA 46; (2015) 258 CLR 482 per French CJ, Kiefel, Bell, Nettle & Gordon JJ (at [58]-[59]).
170 The respondents submit that an appropriate penalty to impose on Mr Raymount for his contravention of s 500 of the FW Act on 30 August 2021 is one at the lower end of the medium range. They submit a discount of 20% should be applied to the pecuniary penalty for this contravention. I do not accept that submission and consider that a discount of that magnitude, in all the circumstances, is excessive. I also do not consider a penalty at the lower end of the medium range is appropriate.
171 In Mr Raymount’s particular circumstances, general deterrence plays a greater role than specific deterrence.
172 For Mr Raymount’s conduct in contravention of s 500 of the FW Act, I impose a penalty of $7,000 which I discount by 10% resulting in what I consider to be an appropriate pecuniary penalty of $6,300.
Union
173 The parties are not agreed as to a penalty range.
174 The Union is a recidivist contravenor and general deterrence is a significant factor I consider a penalty in the high range is appropriate.
175 I impose a penalty of $59,400 to which I apply a discount of 10% resulting in what I consider to be an appropriate pecuniary penalty of $53,460.
31 August 2021
176 The parties agree that a penalty in the low to medium range is appropriate for both Mr Raymount and Mr Brook’s contravening conduct on 31 August 2021.
177 I am not satisfied that is an appropriate range. A penalty in the medium range for this objectively serious conduct, which had the potential to result in injury to themselves or others, is appropriate.
178 It is only because the entry was of short duration that I consider this otherwise reckless and irresponsible behaviour is within the medium range. The consequences of their actions could have been far worse.
Mr Raymount
179 The respondents submit that the penalties imposed should be at the very low end of the low range in Mr Raymount’s case given the absence of any requirement for specific deterrence.
180 Given I do not accept that an appropriate penalty should fall in the low-medium range, I do not accept that submission. The respondents submit further that a discount of 20% should be applied to the pecuniary penalty for these contraventions. I do not accept that submission and consider that such a discount in the circumstances is excessive.
181 As to Mr Raymount, I take into account specific deterrence, but consider general deterrence plays a greater role given Mr Raymount’s particular circumstances.
182 I take into account that Mr Raymount had contravened the FW Act the previous day and had time to reflect on his actions.
183 For Mr Raymount’s conduct in contravention of s 500 of the FW Act, I impose a penalty of $8,500 which I discount by 10% resulting in what I consider to be an appropriate pecuniary penalty of $7,650.
Mr Brook
184 The Ombudsman submits the penalty to be imposed on Mr Brook should be sufficient to deter him from future contraventions of the FW Act, in particular, from failure to comply with reasonable health and safety requirements. Further, the penalty should reflect the Court’s disapproval of Mr Brook’s conduct and it should be sufficient to deter other permit holders and Union officials from engaging in conduct that is inconsistent with the health and safety requirements of work sites. I accept that submission.
185 The respondents also submit that the penalties imposed should be at the very low end of the low range in Mr Brook’s case because of the isolated nature of his contravention. I do not accept that submission. In Mr Brook’s case, specific deterrence plays a significant role, as well as general deterrence.
186 I am prepared to accept that Mr Brook followed Mr Raymount but he should have known better.
187 I do not accept a discount of 20% as contended for by the respondents is appropriate and consider such a discount is excessive in the circumstances.
188 For Mr Brook’s conduct in contravention of s 500 of the FW Act, I impose a penalty of $8,000 which I discount by 10% resulting in what I consider to be an appropriate pecuniary penalty of $7,200.
Union
189 There is no agreed penalty range. The Union is a recidivist contravenor and I consider a penalty is in the high range is appropriate.
190 I impose a penalty of $59,400 to which I apply a discount of 10% resulting in what I consider to be an appropriate penalty of $53,460.
2 September 2021
Mr Savage
191 Both specific and general deterrence are important considerations. I am satisfied that the agreed penalty of $7,600 is an appropriate penalty for Mr Savage’s contraventions of s 342(1) of the FW Act.
Mr Raymount
192 The respondents submit that a penalty at the lower end of that range is appropriate given the lack of aggression in Mr Raymount’s conduct, the absence of any resulting loss or damage and the absence of any requirement for specific deterrence. I do not accept that submission.
193 The respondents submit a discount of 20% should be applied to the pecuniary penalty for this contravention. I do not accept that submission and consider that a discount of that magnitude, in all the circumstances is extensive.
194 I take into account that Mr Raymount had contravened the FW Act over previous days and had time to reflect on his actions.
195 For Mr Raymount’s conduct in contravention of s 500 of the FW Act, I impose a penalty of $5,500 which I discount by 10% for the reasons I have set out above resulting in what I consider to be an appropriate pecuniary penalty of $4,950.
Union
196 There is no agreed penalty range. The Union is a recidivist contravenor and I consider a penalty in the high range is appropriate.
197 The respondents submit that deterrence of this type of conduct would only necessitate a modest penalty. It is for the reasons I have set out that I do not accept that submission.
198 The respondents submit that a discount of 20% should be applied to the pecuniary penalties imposed on the Union. I do not accept that submission and consider that a discount of this magnitude is excessive.
199 For the Union’s involvement in Mr Savage’s conduct on 2 September 2021, I impose a penalty of $59,400 to which I apply a discount of 10% resulting what I consider to be an appropriate pecuniary penalty of $53,460.
200 For the Union’s involvement in Mr Raymount’s conduct on 2 September 2021, I impose a penalty of $59,400 to which I apply a discount of 10% resulting in what I consider to be an appropriate pecuniary penalty of $53,460.
Totality
201 I have considered the totality of the pecuniary penalties imposed on the individual respondents and the Union. I do not consider any further discount on the penalties I have determined is appropriate.
Declarations
Declaratory relief
202 The Ombudsman seeks declarations as to each of the admitted contraventions. She submits that declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) is appropriate to explain the basis upon which liability of particular respondents has been established and to produce an educative effect by identifying conduct which is proscribed by legislation.
203 The respondents accept that the Court has the jurisdiction to grant declaratory relief and has done so in previous cases with similar circumstances. They submit that given deterrence is the sole purpose of relief in cases of contravention, declaratory relief is not justified in this matter.
204 The respondents submit that it is doubtful whether declaratory relief would produce an educative effect, as the basis upon which liability has been established will be clear from the Court’s reasons for judgment on penalty. They submit a potential contravenor is unlikely to be unmoved by the penalties imposed on the respondents in these proceedings, only to then be deterred from contravention by the fact of a declaration being made.
205 I do not accept that submission and I consider declaratory relief is appropriate not simply for ongoing educative attempts but also in demonstrating the Court’s continuing disapproval of the respondents’ conduct.
206 Accordingly, there will be declarations in the following terms:
(1) On 30 August 2021, Wyatt Daniel Raymount contravened s 500 of the FW Act at the Yatala Labour Prison Site by acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the FW Act by:
(a) Stating to representatives of Mossop “you’re useless”; “you’re incompetent”; “you’re trying to kill people”; “you’re shit at your job”;
(b) Stating to the representatives of Mossop, “Luis you are fucking useless at your job, I can’t believe you call yourself a professional, you should be ashamed”;
(c) By walking up to a representative of Mossop so as to be standing 30 to 40cms away from him and saying, “You are useless at your job. How can you get up every morning and do a shit job?; and
(d) Saying to a representative of Mossop words to the effect, “The whole site is a death trap. I wouldn’t bother going back to work because there’s no point”.
(2) On 30 August 2021, the Construction, Forestry, Maritime, Mining and Energy Union contravened s 500 of the FW Act, pursuant to ss 793 and 550 of the FW Act, in relation to the contravention set out in paragraph 1 above.
(3) On 31 August 2021, Wyatt Daniel Raymount contravened s 500 of the FW Act at the Site by acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the FW Act when he entered the Building E exclusion zone when requested not to do so.
(4) On 31 August 2021, Travis Alton Brook contravened s 500 of the FW Act at the Site by acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the FW Act when he entered the Building E exclusion zone when requested not to do so.
(5) On 31 August 2021, the Union contravened s 500 of the FW Act, pursuant to ss 793 and 550 of the FW Act in relation to each of the contraventions set out in paragraphs 3 and 4 above.
(6) On 2 September 2021, Desmond Taivairanga Savage contravened s 340 of the FW Act at the Site by taking adverse action against a representative of Mossop by positioning himself in a threatening manner and stating to that representative words to the effect, “The more you call your mates, the more I’ll come down on you”.
(7) On 2 September 2021, the Union contravened s 340 of the FW Act pursuant to s 550 of the FW Act in relation to the contravention set out in paragraph 6 above.
(8) On 2 September 2021, Wyatt Daniel Raymount contravened s 500 of the FW Act at the Site by acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the FW Act by making an improper statement to a representative of Mossop.
(9) On 2 September 2021, the Union contravened s 500 of the FW Act, pursuant to ss 793 and 550 of the FW Act in relation to each of the contravention set out in paragraphs 8 above.
Time to pay
207 The Ombudsman seeks an order pursuant to s 546(3) of the FW Act that any penalties imposed be paid to the Commonwealth of Australia within 28 days. There will be an order accordingly.
CONCLUSION
208 Apart from the declarations, there will be orders imposing the following pecuniary penalties:
(1) The first respondent is to pay pecuniary penalties totalling $213,840.
(2) The second respondent is to pay pecuniary penalties totalling $18,900.
(3) The fourth respondent is to pay pecuniary penalties totalling $7,200.
(4) The fifth respondent is to pay pecuniary penalties totalling $7,600.
I certify that the preceding two hundred and eight (208) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. |
Associate:
SAD 1 of 2022 | |
TRAVIS ALTON BROOK | |
Fifth Respondent: | DESMOND TAIVAIRANGA SAVAGE |
