FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (The Beams Lift Case) (No 2) [2024] FCA 779

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent pay pecuniary penalties totalling $150,000.00.

2.    The second respondent pay pecuniary penalties totalling $18,000.00.

3.    The penalties referred to in orders 1 and 2 above be paid to the Commonwealth within 28 days.

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

REASONS FOR JUDGMENT

SNADEN J:

1    Part 3-4 of the Fair Work Act 2009 (Cth) (the “FW Act”) is headed, “RIGHT OF ENTRY”. It confers upon “permit holders” various rights to enter premises for various purposes. The exercise of those rights (and others) is subject to various obligations, one of which is that permit holders must refrain from acting in an improper manner. It is that obligation that assumes central significance in this matter.

2    On the evening of Tuesday, 3 December 2019, two officials of the first respondent (the “CFMEU”)—namely, the second respondent, Mr Paul Tzimas, and another man, Mr Ronnie Buckley—attended a construction site known as “area 202A” of what is well-known within Melbourne as the West Gate Tunnel project (the “Site”). They did so in their capacity as permit holders (within the meaning ascribed to that term by pt 3-4 of the FW Act) and for the purposes of exercising rights conferred upon them by s 89 of the Occupational Health and Safety Act 2004 (Vic) (hereafter, the “OHS Act”).

3    Over the course of approximately six-and-a-half hours following their arrival at the Site, Mr Tzimas and Mr Buckley had occasion to interact with an inspector from WorkSafe Victoria, Mr Quinton Drury, and with members of Victoria Police. Those interactions (all of which were in the early morning of Wednesday, 4 December 2019) were founded upon Mr Tzimas’s and Mr Buckley’s apparent belief that work that was to be performed at the Site that evening by (or under the supervision of) a well-known construction contractor, John Holland Pty Ltd (hereafter, “John Holland”), would be performed unsafely and in contravention of the OHS Act or its regulations.

4    Some of those interactions were unsavoury. Mr Drury—whose role it was on the night (and early morning) to come to the Site and determine whether the safety concerns by which Mr Tzimas and Mr Buckley were apparently animated were warranted (or were otherwise as such to warrant the postponement of the work in question)—did not share the opinions at which the two officials had arrived. That was, it is fair to say, met with a measure of hostility from Mr Tzimas, who proceeded to question Mr Drury’s impartiality and suitability for the role that he was there to discharge. Later, after members of Victoria Police were called to the scene and asked Mr Tzimas and Mr Buckley to leave, the officials redirected some of their fury toward them.

5    During the course of relevant events, Mr Tzimas made the following remarks to Mr Drury:

If you want to be a lap dog—if you want to be a lap dog to John Holland and to get the works done, without addressing the issues, that’s up to you.

…

Right. So why won't you conduct the inspection? Because you're corrupt; that's why.

…

[It] exposes you for your incompetence … you’re a disgrace.

6    Mr Tzimas directed the following towards members of Victoria Police:

[You are a] Disgrace. Absolute disgrace.

…

You’re acting as a lap dog for John Hollands denying us our rights to represent our workers.

7    Mr Buckley directed the following towards members of Victoria Police:

Who’s on the John Holland’s payroll, boys? You as well? I thought it was only WorkSafe. Surely not in Australia?

…

Corruption at its finest.

…

[You are] Defending a tyrant.

8    The applicant (the “FWO”) is a statutory regulator established pursuant to s 696(2)(a) of the FW Act. She has standing to maintain these proceedings: FW Act, s 539(2). She came to this matter having assumed it from its original applicant, the Australian Building and Construction Commissioner. That office was abolished with effect from 6 February 2023 by pt 3 of sch 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).

9    The CFMEU is a large and well-known trade union registered pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). Mr Tzimas and Mr Buckley are (or, at relevant times, were) CFMEU officers, who were acting in their capacity as such during their attendance at the Site. Each held an “entry permit” issued pursuant to s 512 of the FW Act.

10    By an amended originating application dated 21 July 2021, the FWO charges Mr Tzimas with having acted in an improper manner (and in contravention of s 500 of the FW Act) whilst exercising rights in accordance with pt 3-4 of the FW Act. He is said to have done so on five occasions, specifically by his having made each of the comments referred to above (at [5] and [6]).

11    The FWO further maintains that the CFMEU was accessorily involved in all five of Mr Tzimas’s contraventions of s 500 of the FW Act (such that it is to be held as having committed those same contraventions). A sixth contravention, said to inhere in the comments that Mr Buckley made (above, [7]), is also laid against the CFMEU on the same footing.

12    The FWO moves for relief in the nature of declarations and the imposition of penalties against each of the CFMEU and Mr Tzimas. No relief is sought against Mr Buckley.

13    By their amended defences of 28 July 2021, the CFMEU and Mr Tzimas admit that:

(1)    Mr Tzimas contravened s 500 of the FW Act on five occasions by acting in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act;

(2)    Mr Buckley contravened s 500 of the FW Act once by acting in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act; and

(3)    the CFMEU was involved in—and is properly to be taken to have itself committed—each of the six contraventions attributed to Mr Tzimas and Mr Buckley.

14    For the reasons that follow, I am satisfied that the statutory contraventions that are alleged and admitted transpired, and that it is appropriate to impose against the respondents pecuniary penalties as follows, namely:

(1)    as against Mr Tzimas—penalties totalling $18,000.00; and

(2)    as against the CFMEU—penalties totalling $150,000.00.

THE PROCEEDING

15    The present matter was first commenced in September 2020. The applicant at that time was, as has been noted, the Australian Building and Construction Commissioner. He filed a statement of claim that contained allegations much broader than what is now pursued. It included allegations that Mr Tzimas and Mr Buckley had intentionally hindered or obstructed the performance of work at the Site, and it sought relief against Mr Buckley as well as the other respondents.

16    In 2021, it appears that the Commissioner reached an agreement with the respondents pursuant to which the latter admitted to a diluted version of the case that is similar to what is now advanced. What was to be a lengthy contested trial directed to the respondents’ liability for the many contraventions that were alleged against them made way instead for a substantially shorter hearing about the relief that should be imposed in light of their admissions.

17    The matter has a somewhat convoluted procedural history. It was initially the subject of a hearing before (and a judgment of) a different docket judge in 2021. Penalties were imposed, only later to be set aside by consent on appeal. Thereafter, the matter was remitted for rehearing and allocated to my docket. After the FWO took carriage of the matter, it was further refined such that no relief was to be sought as against Mr Buckley. The proceeding as against him was discontinued by consent on 18 August 2023.

18    The rehearing took place on 12 March 2024. The FWO read an affidavit sworn on 6 August 2021 by Mr Benjamin Robert Vallence. Exhibited to that affidavit was various information, including financial information, that the CFMEU had filed with the Registered Organisations Commissioner in August and September 2020 in satisfaction of reporting obligations imposed upon it by the Fair Work (Registered Organisations) Act 2009 (Cth). The FWO also read two affidavits affirmed by Mr Drury, one dated 27 July 2023 and the other dated 16 November 2023. Further, she tendered a statement of agreed facts dated 28 February 2024, and a table summarising the large number of instances in which the CFMEU has been held to have contravened provisions of the FW Act (or its statutory predecessors).

19    The respondents read four affidavits, namely:

(1)    an affidavit of Mr Tzimas dated 27 August 2021;

(2)    an affidavit of Mr Brian Lacy AO dated 27 August 2021;

(3)    an affidavit of Ms Elyane Drouart Palmer dated 27 August 2021; and

(4)    a second affidavit of Mr Tzimas affirmed on 7 September 2023.

20    The parties filed detailed and high-quality written submissions, upon which they elaborated orally at a hearing that took place on 12 March 2024.

THE CONTRAVENING CONDUCT

21    In light of the admissions contained in the amended defences and the affidavit material, I am satisfied that:

(1)    on five occasions on 4 December 2019, Mr Tzimas contravened s 500 of the FW Act, specifically by saying to Mr Drury and to the police what is attributed to him above (at [5] and [6]); and

(2)    also on 4 December 2019, Mr Buckley contravened s 500 of the FW Act by saying to the police what is attributed to him above (at [7]).

22    I am also satisfied that, by operation of s 793 of the FW Act (to which reference is made below), the CFMEU must be understood to have engaged in the same conduct as that in which Mr Tzimas and Mr Buckley engaged; and to have done so with the same state or states of mind as they possessed when they engaged in it. That suffices to fix the CFMEU with liability under s 550(1) of the FW Act as an accessory to Mr Tzimas’s and Mr Buckley’s contraventions: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 281 FCR 365, 373-378 [36]-[53] (Reeves and O’Callaghan JJ, with whom Charlesworth J agreed). Intending no disrespect, I confess some doubt about the correctness of that last proposition; but, given that there is binding authority that establishes it, those doubts should not be indulged (at least not beyond my baldly recording them).

23    I am, then, satisfied that the CFMEU contravened s 500 of the FW Act on six occasions in the early morning of Wednesday, 4 December 2019: specifically by reason of its having been involved in the six contraventions described above (at [21]).

LEGISLATIVE FRAMEWORK

24    Division 3 of pt 3-4 of the FW Act regulates (amongst other things) the exercise of “State or Territory OHS right[s]”, which are rights of entry conferred by “State or Territory OHS law[s]”. Amongst such laws is the OHS Act.

25    Part 8 of the OHS Act defines what is meant by an “authorised representative of a registered employee organisation”. It is uncontroversial that Mr Tzimas and Mr Buckley were such persons. Each possessed a right of entry conferred by the OHS Act, the exercise of which was regulated by pt 3-4 of the FW Act.

26    Part 8 of the OHS Act also contains ss 87, 89 and 90. They relevantly provide as follows:

87 Entry powers of authorised representatives

(1)    This section applies if an authorised representative of a registered employee organisation reasonably suspects that a contravention of this Act or the regulations has occurred or is occurring at a place that is a workplace and any of the following paragraphs applies—

(a)    the suspected contravention relates to or affects work that is being carried out by one or more members of the registered employee organisation or relates to or affects any of those members;

…

(2)    The authorised representative may enter the place, during working hours, for the purpose only of enquiring into the suspected contravention.

…

89 Powers on entry

(1)    An authorised representative of a registered employee organisation who enters a place under section 87 may do any of the following but only to the extent that it is reasonable for the purpose of enquiring into the suspected contravention—

(a)    inspect any plant, substance or other thing at the place;

(b)    observe work carried on at the place;

(ba)    take photographs or measurements or make sketches or recordings at the place;

(c)    consult with one or more employees (with their consent) at the place who are members or are eligible to be members of the registered employee organisation;

(d)    consult with any employer at the place about anything relevant to the matter into which the representative is enquiring.

…

(3)    If, while the authorised representative is at the place, an issue arises between the authorised representative and the employer who has, or a person who on behalf of the employer has, the management and control of the work at the place about the exercise of any of those powers, either of those persons may ask the Authority to arrange for an inspector to attend at the place to enquire into the issue.

(4)    The Authority must ensure that an inspector attends the place as soon as possible after the request is made and the inspector—

(a)    must as soon as possible enquire into the issue; and

(b)    may perform any of his or her functions or exercise any of his or her powers under this Act that the inspector considers reasonably necessary in the circumstances.

90 Limitations on exercise of powers

…

(2)    Despite anything else in this Part but subject to subsection (3), an authorised representative of a registered employee organisation is not entitled to exercise a power under this Part in respect of a place, except with the consent of the employer who has, or a person who on behalf of the employer has, the management and control of the work, if the exercise of that power would cause any work at the place to cease.

(3)    Nothing in subsection (2) prevents an authorised representative who reasonably believes that there is an immediate and significant risk of serious injury or death to one or more employees from warning the employee or employees of that risk.

…

27    The FW Act contains a number of provisions that regulate the manner in which permit holders must and must not exercise their rights of entry under pt 3-4. Amongst them is s 500, which provides (and provided) as follows:

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.

…

28    Section 500 is a “civil remedy provision”: FW Act, s 539(1). Part 4-1 of the FW Act confers upon this court power to make any order that it considers appropriate in respect of a person who contravenes such a provision: FW Act, s 545(1). That power extends to the imposition of pecuniary penalties of up to (relevantly for present purposes) $12,600.00 for natural persons and $63,000.00 for bodies corporate: FW Act, s 546(2).

29    Section 550 of the FW Act serves to extend liability for contraventions of civil remedy provisions to those who are “involved in” their commission by others. It provides (and provided) as follows:

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:

…

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

…

30    Section 793 of the FW Act is concerned with the attribution to bodies corporate of conduct and states of mind engaged in by their human agents. The section relevantly provides as follows, namely:

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

…

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.

…

DECLARATORY RELIEF

31    The FWO presses the court to grant declaratory relief recording the contraventions that are alleged (and that I am satisfied transpired). For the reasons to which I shall shortly come, I am resolved to impose upon both (remaining) respondents pecuniary penalties in respect of their contravening conduct. Accepting that the authorities make clear that the court has a power to do so in cases such as this, I do not consider that there is any point here in granting, additionally to those pecuniary penalties, relief in the form of binding declarations of right.

32    In saying so, there is no need to repeat the observations that I have made in previous civil penalty matters about the circumstances in which declaratory relief might or might not be considered appropriate for the purposes of s 545(1) of the FW Act (or, indeed, for any purposes) to be imposed alongside pecuniary penalties. It is apparent from their submissions that the parties well understand those observations and it is convenient that I should, instead, adopt (as though with appropriate adaptation) what I said in Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934, [61]-[69].

33    In the circumstances that present in this matter (and as in other, similar matters), I am of the view that:

(1)    there is no deterrent effect to be realised via a grant of declaratory relief that would not in any event be realised by reason of the pecuniary penalties that I intend to impose; and

(2)    declaratory relief would not realise any other legitimate consequence—that is to say, a consequence other than general or specific deterrence (supposing, momentarily, that it might be appropriate to grant such relief in order so to realise such a consequence)—that isn’t already to be achieved by these reasons and the pecuniary penalties that I intend to impose in light of them.

34    Declaratory relief in the present matter would, in my view, be “totally pointless”: Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1, 36 [110] (Gray J). On that basis, none will (or, indeed, can) be granted.

PECUNIARY PENALTIES

Principles

35    The principles that guide the imposition of civil penalties for contraventions of the FW Act (and generally) are well-settled. They are distilled in the joint judgment of Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (hereafter, “Pattinson”). In Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781, Wheelahan J, referring to Pattinson, summarised them as follows (at [13]):

(1)    The purpose of the civil penalty regime under the FW Act is primarily, if not solely, the promotion of the public interest in compliance with provisions of the Act by the deterrence of further contraventions of the Act.

(2)    Reflecting the text of s 546 of the FW Act, the Court’s task is to determine what it considers to be an “appropriate” penalty in a particular case. A penalty should not be greater than is necessary to achieve the object of deterrence, and severity beyond that would be oppression. An appropriate penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case.

(3)    The assessment of an appropriate penalty may be informed by the factors listed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-3 to the extent that those factors relate to deterrence. However, that list is not a rigid catalogue of matters for attention as if it were a legal checklist. Account of the factors listed by French J in CSR, such as an expression of genuine remorse, may moderate the penalty that is appropriate to protect the public interest by deterring future contraventions of the FW Act.

(4)    Some concepts familiar from criminal sentencing, such as totality, parity, and course of conduct may assist in the assessment of what may be considered reasonably necessary to deter further contraventions of the FW Act.

(5)    The maximum penalties provided for by the FW Act are not reserved for the worst cases. Rather, what is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed viewed through the lens of achieving the deterrence which is the purpose of the FW Act civil penalty regime.

(6)    In some cases, the circumstances of the contravener may be more significant to the assessment of an appropriate penalty than the circumstances of contravention, because, all other things being equal, a greater financial incentive will be necessary to persuade a well-resourced contravener to abide by the law rather than to adhere to its preferred policy than will be necessary to persuade a poorly resourced contravener that its unlawful policy preference is not sustainable.

36    In determining what penalties are appropriate in the present case, the court’s discretion is very broad: A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466, [6] (Gyles J). The task of assessing what amount to impose is one of “instinctive synthesis”. It involves the selection of a figure that takes due account of all factors relevant to the particular case: Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68, 84 [55] (Allsop CJ, Davies and Wigney JJ); Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25, 37-38 [44] (Jagot, Yates and Bromwich JJ).

37    The sole object to which the court must give effect in setting appropriate penalties is to deter the repetition of the conduct in respect of which they are to be imposed: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 (hereafter, the “NIPP Case”), 167 [19] (Allsop CJ, White and O’Callaghan JJ). Deterrence, in that sense, is both specific and general: the court must endeavour to “…put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene [the Act]”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, 88 [98] (Dowsett, Greenwood and Wigney JJ); Trade Practices Commission v CSR Ltd (1991) ATPR 41-076, 52-152 (French J).

38    In the NIPP Case (Allsop CJ, White and O’Callaghan JJ), the full court set the task in the following terms (at 167 [20]-[21]):

Relevant factors in the overall assessment of penalty were helpfully listed by French J in CSR. They have been adopted in many cases. For present purposes, they can be restated as follows: 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.

The seriousness of the contravention and other features of the conduct which may be seen as relevant to it…find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty: Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 at [71].

39    Inherent in realising the sole objective to which its imposition is directed is a recognition 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”: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, 659 [66] (French CJ, Crennan, Bell and Keane JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458, 481 [101] (Dowsett and Rares JJ, North J dissenting—hereafter, the “Perth Airport Case”).

40    The court’s task in this case is to impose a penalty that strikes a balance between “oppressive severity” and the need to deter, specifically and generally, repetition of the contravening conduct. That task is informed by consideration of a number of matters, to which attention can now turn.

Nature of the conduct

41    There is not much about the conduct in which Mr Tzimas and Mr Buckley engaged that is relevantly in dispute. From the summary that follows, I should be understood to accept (and to have found) that events transpired as described.

42    During the evening and early morning of Tuesday, 3 and Wednesday, 4 December 2019, John Holland was engaged in the overnight lifting and installation of five bridge beams on the northern side of an existing bridge over Millers Road. To that end, a “temporary scaffold deck” had been erected for the purpose of ensuring that each beam could be positioned securely and safely prior to installation. The work was to be performed only in the presence of those who were to execute it (and who had undergone appropriate briefings to that end). It could not be undertaken if others were present in the “exclusion zone” of the scaffold deck area.

43    Mr Tzimas and Mr Buckley entered onto the Site shortly after 9:30pm on Tuesday, 3 December 2019, not long after the affected part of the freeway had been closed. Upon arrival, Mr Tzimas and Mr Buckley each issued a notice of suspected contravention pursuant to the OHS Act to the management representatives who were present and produced their respective entry permits. Mr Tzimas’s notice described suspected contraventions of the OHS Act inhering in “inadequate [safe work methods statement] for the tasks being performed, risks associated with works not all accounted for & [safe work method statement] not site specific. Inadequate lifting gear in use. No risk assessment …”. Mr Buckley’s notice described “inadequate safe systems of work in regards to concrete element installation, inadequate maintenance in regards to lifting hardware, inadequate hardware being used”.

44    Upon presenting their notices, Mr Tzimas and Mr Buckley proceeded to position themselves on the scaffold deck. As the lifting and installation of the bridge beams could not be undertaken whilst they were there, that work immediately ceased (or, at any event, did not proceed).

45    Mr Tzimas and Mr Buckley thereafter refused requests to vacate the scaffold deck. Instead, whilst there, they asked that certain safety documentation (including a “safe work method statement”) be brought to them for their review. It was agreed that they could review what had been requested; but only somewhere away from the scaffold deck. Mr Tzimas and Mr Buckley did not agree and remained where they were.

46    That prompted the making of two phone calls: one to WorkSafe Victoria and one to the police. Mr Drury arrived at the Site at approximately 12:15am, whereupon he was apprised of the issues about which Mr Tzimas and Mr Buckley had expressed their concern. Two Victoria Police officers also came to the Site.

47    There were then some interactions as between Mr Drury (on the one hand), and Mr Tzimas and Mr Buckley (on the other). Mr Drury advised Mr Tzimas and Mr Buckley of his assessment that there was no immediate risk to worker safety at the Site. He asked Mr Tzimas and Mr Buckley to move from the scaffold deck to a safer location so that work could resume, whereupon Mr Tzimas made the “lap dog” comment referred to above (at [5]). He and Mr Buckley again refused to vacate the scaffold deck.

48    That refusal was repeated following an equivalent request made to Mr Tzimas and Mr Buckley by the police. Mr Buckley stated that the safety documentation needed to be reviewed in the work area in order to compare it with the work activity. Mr Tzimas expressed some concern that, if he and Mr Buckley were to leave the scaffold deck, they would not be let back onto it.

49    At approximately 2:05am, further members of Victoria Police arrived. They advised Mr Tzimas and Mr Buckley that they had been asked to leave the scaffold deck by the occupier of the Site, that WorkSafe had advised that there was no immediate safety risk and that the Site was safe, and that, if they did not leave, they would be arrested and removed. Mr Tzimas responded that it did not matter that the WorkSafe inspector, Mr Drury, had said that the Site was safe, that he and Mr Buckley had “a right to inspect any thing, plant or substance that [they] inquired about” and that they had not yet been able to do that.

50    Notwithstanding the above exchange, Mr Tzimas and Mr Buckley did agree to leave the Site, although Mr Buckley thereupon indicated that he would, “just write another [notice of suspected contravention]”.

51    Indeed, at approximately 2:20am, Mr Tzimas and Mr Buckley left the Site and immediately began writing fresh notices of suspected contraventions of the OHS Act. Upon completion, they issued them to a management representative that was present, Mr Don Banks. Mr Tzimas’s notice described his suspicions as “inadequate [safe work method statement] and safe systems of work around beam installation, fall protection and access/egress is inadequate”. Mr Buckley’s notice described “inadequately safe systems of work in regards to concrete element installation, inadequate lifting gear and maintenance” and “inadequate [safe work method statement], fall protection”.

52    Mr Tzimas then re-entered the scaffold deck “exclusion zone”. It had, by then, been blocked off by two traffic cones, at which a John Holland employee had been stationed in order to prevent unauthorised access. At some point, the employee moved away from the scaffold deck entry point, whereupon Mr Tzimas stepped through the two traffic cones and made his way up some stairs back to the scaffold deck.

53    The police then demanded that Mr Tzimas get off the scaffold deck but he refused. Meanwhile, Mr Buckley remained at the bottom of the stairs. Mr Drury advised Mr Buckley that he (Mr Drury) had already dealt with the issues identified in the two fresh notices of suspected contravention. On seven occasions, Mr Drury advised Mr Buckley that there was no immediate risk to worker safety at the Site. Mr Drury and a member of Victoria Police then walked up the scaffold stairs to speak with Mr Tzimas, whereupon Mr Tzimas made the “corrupt” comment referred to above (at [5]). Victoria Police then escorted Mr Tzimas from the Site.

54    At approximately 2:30am, whilst outside the Site, Mr Tzimas and Mr Buckley again began writing fresh notices of suspected contravention. At that time, Mr Tzimas made the “disgrace” comment referred to above (at [6]), and Mr Buckley made the comments referred to above (at [7]).

55    Mr Tzimas and Mr Buckley each issued their notices of suspected contravention to the management representative, Mr Banks. Each then sought to access the Site but was refused (presumably by Victoria Police, although nothing turns on that). It was then that Mr Tzimas made the “lap dog” comment referred to above (at [6]).

56    A short while later, Mr Tzimas approached Mr Drury and made the “disgrace” comment referred to above (at [6]).

57    At approximately 3:00am, Mr Tzimas and Mr Buckley left the Site. The overnight lifting and installation of the five bridge beams was not completed as scheduled.

58    The FWO sought to stress the context in which the respondents’ conduct took place. She submitted that the overnight lifting and installation of the five bridge beams was time-sensitive work that involved closing down part of the West Gate Freeway (with all the consequential inconvenience that doing so necessarily entails). She noted that, upon gaining access to the Site, Mr Tzimas and Mr Buckley went straight up to the scaffold deck, plainly conscious that their presence there would result in disruption to that work. They refused to leave it, despite knowing that their presence would sound in disruption to the work and despite being told that they could elsewhere review the documentation that they had requested. When Mr Drury arrived at the site to consider the very issues that they had raised, Mr Tzimas and Mr Buckley refused to speak with him about them; instead, they dismissed him, saying “we don’t need to talk to you…we don’t have to discuss it”.

59    Further, the FWO noted that, when Mr Drury asked Mr Tzimas and Mr Buckley to move to a safer location, they refused. They refused notwithstanding that they were told that there were no immediate risks to health or safety. That refusal necessitated (or, at the very least, led to legitimate) police involvement. Again, Mr Tzimas and Mr Buckley refused to budge. Ultimately, Mr Tzimas had to be escorted from the Site.

60    The respondents contend that the conduct constituting the contraventions that I am satisfied occurred involved only the making of improper communications. To punish them for other conduct, they say, would be in error, as there is no other conduct that is relevantly here the subject of allegation and admission.

61    Moreover, the respondents maintain that the statements that were made in breach of the FW Act were the product of frustrations that arose from genuinely held perceptions that:

(1)    the work that was to be undertaken at the Site on the night in question would not have been undertaken with proper regard to worker safety;

(2)    their efforts to investigate Mr Tzimas’s and Mr Buckley’s concerns were being foiled by John Holland’s refusal to bring the paperwork that had been requested, or otherwise to engage with those concerns at the scaffold deck (rather than some other location);

(3)    Mr Drury could not properly have taken the view that the works were safe in the short span of time that he had to consider the issue; and

(4)    the only concern by which Mr Drury and others at the Site were animated was the timely completion of the works.

62    The respondents also sought to impress upon the court that Mr Tzimas had seen first-hand how dangerous construction work can be, such that the concerns that he raised on the night in question were genuine; and that at least some of the concerns that they had raised were later addressed. Finally, they noted that the contravening conduct had been engaged in by way of reaction to the circumstances in which Mr Tzimas and Mr Buckley found themselves, and not as part of some deliberate or broader industrial strategy. So understood, they maintained that the contravening conduct of which the court is presently seized is qualitatively different to what arose in authorities such as Pattinson.

63    As senior counsel for the respondents (with respect) correctly submitted, the court should be alive to the precise nature of the conduct that has been alleged and admitted—and that I have found transpired in contravention of s 500 of the FW Act. The respondents are not to be penalised for anything other than the regrettable comments that Mr Tzimas and Mr Buckley made during their attendance on 4 December 2019. Nevertheless, matters of context should not be ignored, particularly insofar as they bespeak attitudes that are relevant to discerning the deterrent effect that is to be served by appropriate pecuniary penalties.

64    The nature of the contravening conduct is properly to be assessed against the backdrop of the circumstances within which it was engaged. On no view could it be thought that Mr Tzimas and Mr Buckley were justified in behaving the way that they did on 4 December 2019. By holding up the performance of work, and by refusing to engage in a meaningful way with management, Mr Drury or the police as to their concerns, the conduct in which Mr Tzimas and Mr Buckley indulged bespoke a thuggish assertion of control over how the site should operate. They sought to appropriate unto themselves an authority that they plainly did not possess; and, when challenged, their response was to bully their interlocutors with unwarranted insults and abuse.

65    It is, I think, one thing to behave improperly whilst seeking legitimately to exercise statutory powers; it is another altogether to do so in connection with behaviour for which there could be no possible statutory justification. Improper conduct of the latter kind is, by its nature, more serious than equivalent conduct of the former kind. The court should be concerned to impose penalties of greater severity if for no other reason than to recognise that its engagement likely reflects an attitude toward wrongdoing that requires greater deterrent energy.

66    In saying so, I accept that there is no evidence to suggest that Mr Tzimas and Mr Buckley did what they did in furtherance of any broader union policy or industrial strategy. Such conduct would undoubtedly warrant consideration as more serious than what confronts the court presently; but so to observe is not to doubt that conduct in which a permit holder engages “in the moment” might nonetheless qualify as “serious”.

67    I should pause to say something about the nature of the concerns by which Mr Tzimas and Mr Buckley were animated. I am not asked to find that—and much less could I properly determine whether—the safety concerns that Mr Tzimas and Mr Buckley identified were well-founded. I accept that they thought that they were well-founded (notwithstanding that there may be reason to doubt that, given the manner in which they behaved).

68    It is not apparent to me why the states of mind of Mr Tzimas and Mr Buckley should sound in the respondents’ favour. It is to be borne firmly in mind that Mr Tzimas and Mr Buckley were each, at the relevant time, exercising a right of entry in accordance with pt 3-4 of the FW Act. In doing so, they must be presumed to have been (and I have found that they were) animated by concerns genuinely held. Indeed, it is difficult to see how a permit holder might contravene s 500 of the FW Act without thinking that the purpose animating his or her exercise of an entry right was legitimate.

69    If anything, the fact that Mr Tzimas and Mr Buckley were minded to behave as they did—and that they responded in the ways that they did when they were challenged—tends to suggest that each might be prone to hot-headedness in the service of legitimate ends (here, the promotion of workplace safety). There is no possible justification for the conduct in which they engaged; and yet each felt licensed to obstruct the performance of work, and to bully and abuse those who sought to persuade them not to, including independent third parties who were unwittingly called upon to deploy their expertise in a difficult situation in the middle of the night.

70    By its nature (and in each instance), the contravening conduct in which Mr Tzimas engaged—that is to say the making of the communications that he made in the circumstances within which he made them—is properly to be characterised as of low-to-mid-level seriousness. To speak to Mr Drury and the police as he did—and to do so in the context within which he did so—cannot be written off as mere triviality. His conduct (looked at in isolation from the other considerations that are analysed below) is deserving of sanctions commensurate with low-to-mid-level contravening. Mr Buckley’s conduct (for which the CFMEU is accessorily liable) was similarly serious.

Prior contraventions

71    It is now well accepted that a wrongdoer’s history of engaging in conduct in contravention of a civil remedy provision is a circumstance that should warrant the imposition of a penalty more significant than might otherwise be warranted, including one that, looked at in isolation, might be disproportionate to the nature, gravity or seriousness of the instant conduct.

72    As at 4 December 2019, Mr Tzimas had not previously been penalised for contravening any industrial laws. He has since been penalised for conduct that occurred prior to 4 December 2019: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCA 1068 (O’Callaghan J). In that case, Mr Tzimas was found to have been knowingly concerned in or party to the organisation of unlawful industrial action; and, thereby, to have contravened s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). For that, he was ordered to pay a pecuniary penalty of $15,000.00.

73    Mr Tzimas has also, by means of conduct engaged in after 4 December 2019, been found to have committed other contraventions of the FW Act, including by engaging in acts that might not unfairly be described as forms of bullying: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FedCFamC2G 1060 (Judge Mansini). There, Mr Tzimas was found to have physically pushed a senior site manager, knocked his hard hat from his head and then pushed him again. He was found to have twice contravened s 500 of the FW Act and was ordered to pay penalties totalling $10,500.00.

74    Findings of contravention that post-date the conduct that is presently in focus are relevant insofar (and, in my view, only insofar) as they might be thought to shed light on the attitude of a wrongdoer and, thereby, to be capable of informing the deterrent effect to which the setting of a penalty must be directed: Civil Air Operations Officers’ Association of Australia v Airservices Australia (No 2) [2022] FCA 1077, [55] (Snaden J); Temple v Powell (2008) 169 FCR 169, 188 [64] (Dowsett J). As the respondents properly contended, however, such findings are of lesser assistance to the task of fashioning appropriate penalties than are findings that were made prior to the conduct in respect of which they are to be imposed. Great care must be taken to ensure that any penalty that is to be imposed in respect of conduct engaged in earlier in time is imposed only in the service of deterring the repetition of similar conduct in the future (and not in a way that amounts to double punishment of the later conduct).

75    The CFMEU’s record of transgressing industrial laws is well documented (and not in dispute). Between 2010 and the date of the hearing in this matter, it was the subject of approximately 180 findings of contravention of s 500 of the FW Act. It is widely and properly accepted to be a well-resourced, recidivist offender that has produced an extraordinary number of judgments of this court and others, many of which have strongly criticised its poor record of statutory compliance: Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) (2023) FCR 334 (hereafter, “The 250 East Terrace Case”), [75] (Charlesworth, Snaden and Raper JJ); Australian Building and Construction Commissioner v Holl (The Wheeler Cranes Case) [2021] FCA 1480, [193] (Abraham J); Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038, [51] (O’Callaghan J); Fair Work Ombudsman v Blakeley [2023] FCA 1597, [45] (Collier ACJ) .

76    The respondents contend that the purpose underlying the imposition of civil penalties is to deter future contraventions of a “like kind”. To that end, they seek to draw a distinction between the conduct that is the subject of admission in the present matter and that which has previously been the subject of judicial consideration. It is said that, because the conduct of present relevance arose by way of reaction to the specific circumstances in which Mr Tzimas and Mr Buckley found themselves on 4 December 2019—and because those circumstances were necessarily unique—there should be nothing about their histories of statutory transgression that bears materially upon what level of penalty should be thought to be required to deter similar conduct into the future.

77    I reject that submission. It is contrary to authority. Insofar as a wrongdoer’s history of statutory transgression bespeaks an enduring indifference to the requirements of the law (or perhaps, a tendency to disregard those requirements in preference to the achievement of goals considered more worthy), that is a circumstance that properly informs the court’s assessment of what sanction might be appropriate: The 250 East Terrace Case, [74], [78] (Charlesworth, Snaden and Raper JJ).

78    So to observe, however, is not to suggest that a penalty might be imposed to deter any form of future statutory wrongdoing. Insofar as that was the submission advanced by the respondents, it should be accepted. The court is here concerned to impose penalties that will suffice to deter, specifically and generally, the repetition of improper conduct on the part of permit holders exercising rights in accordance with pt 3-4 of the FW Act, as well as the involvement by accessories in such conduct.

79    For present purposes, the respondents’ histories (and particularly the CFMEU’s history) of contravening industrial laws are instructive because they demonstrate an abiding failure or refusal to accept that the achievement of their objectives—whatever they might be at any given time and in any given circumstance—should yield to compliance with the requirements of the law.

80    There is no question that, in the case of the CFMEU, specific deterrence requires the imposition of significant penalties. But for the fact that he is no longer a permit holder, I would have reached a similar conclusion with respect to Mr Tzimas (albeit one that reflects a history on his part that is not as troubling as that of his union).

Cooperation

81    The respondents submit that the court should apply what was described as a “discount” for their having admitted the contraventions that are alleged against them and, thereby, having avoided the need for a lengthy trial.

82    There is an undoubted public interest that stems from relatively early admissions that spare the FWO (which is to say, Australian taxpayers) the costs of a trial, and that free up resources in a way that is apt to increase the prospect that other contravening conduct will be detected and deterred: see Fair Work Ombudsman (formerly Australian Building and Construction Commissioner) v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) (No 2) [2023] FCA 13, [44] (Katzmann J) and the authorities to which her Honour there refers.

83    I accept that that is a circumstance that should inform the court’s assessment of what might be required generally to deter repetition of the conduct in which the respondents here engaged. The degree to which it should do so is not easily discerned. Plainly, cooperation should sound in the application of a penalty “discount” insofar as it bespeaks a lesser need for pecuniary sanction in the service of deterrence. I do not understand it to be suggested here—and, in any event, would not accept in the absence of some supporting evidence—that the respondents’ decision to admit what was alleged against them reflects some heightened acknowledgment, on their part, that they did anything wrong (at least not to an extent already apparent from their statements of contrition and efforts to rehabilitate, which are discussed below). Just as likely, it reflects an acceptance that, were they to attempt a defence of their actions, it would fail.

84    Nonetheless and for the reasons already identified, the cooperation that has been shown in this matter is potentially relevant to the setting of appropriate penalties, in that it might reflect that a penalty of lesser severity is needed generally to deter repetition of the contravening conduct. I say so conscious that, in Pattinson, that was not the course that the High Court favoured. It is to be recalled that, in that matter, the maximum penalty was imposed and reinstated notwithstanding the existence of an agreement as to liability, and notwithstanding the full court’s findings in relation to the utilitarian value of that agreement.

85    Although the issue is not free from doubt, I consider it correct to (and I do) take account of the respondents’ cooperation in this matter as a circumstance that is apt to inform what are appropriate pecuniary penalties to be imposed against them.

Remorse

86    Mr Tzimas’s affidavits express some remorse for his conduct. He accepts that what he said was out of line. He acknowledges that his conduct bore adversely upon Mr Drury, which he also regrets. I accept that those statements of regret were genuinely offered, if only to the court.

87    Mr Tzimas also expressed remorse for having given the CFMEU’s detractors ammunition to use against it. I do not doubt that that is a view that he sincerely holds but it does colour his other statements of regret. It rather tends to underline a tribal, “us and them” mentality that is consistent with the conduct in which he engaged on 4 December 2019.

88    It doesn’t much matter. Either way, the evidence is clear (and I accept) that Mr Tzimas has engaged in genuine self-reflection and that he regrets what he did. Nonetheless, his expressions of remorse have come on the heels of the compromise that was reached as to the disposition of the proceeding. Mr Tzimas made no effort to express any contrition—including to Mr Drury—until after that compromise was reached. Indeed, there appears still to have been no effort on his part to apologise directly to Mr Drury. While I don’t doubt Mr Tzimas’s sincerity—and I accept that there is evidence of contrition and that it is apt to inform the court’s assessment of what might be necessary to deter similar conduct in the future—I am not persuaded that it should sound in a sizeable penalty “discount”.

89    Unlike Mr Tzimas, the CFMEU has offered no expression of remorse or contrition for its conduct. I should not wish to overstate that reality. It is to be recalled that the CFMEU’s conduct is a product of legislative fiction: it did what it did because Mr Tzimas and Mr Buckley did what they did. It is, of course, open to it to express remorse or contrition through other officials; but, in circumstances where Mr Tzimas himself has done so, that should be understood to reflect at least in part upon the union as well.

Corrective action

90    The respondents led affidavit evidence from Mr Brian Lacy AO, which attested to some of the training that the CFMEU has engaged Mr Lacy to provide to Mr Tzimas (and others) concerning the nature and limits of the rights of entry conferred by part 3-4 of the FW Act. That training, it was said, reflects some effort on the part of Mr Tzimas and the CFMEU to understand the limits of those statutory powers and to ensure that they are not contravened in the future.

91    Mr Lacy is a barrister and a former presidential member of what is now the Fair Work Commission. There is no doubt that his expertise extends to the topics about which he was engaged to provide training. His reputation in the field of industrial law (and, thereby, his capacity to provide that training) is similarly beyond doubt.

92    By a report that he provided to the CFMEU after conducting his training session with Mr Tzimas, Mr Lacy recorded that:

(1)    he met with Mr Tzimas on 20 August 2021;

(2)    that meeting lasted for approximately 65 minutes;

(3)    during their session, he explained to Mr Tzimas why his conduct at the Site on 4 December 2019 was contrary to the requirements of s 500 of the FW Act; and

(4)    during and/or as a result of the training that he undertook, Mr Tzimas:

(a)    acknowledged that he must not engage in unlawful industrial action, hinder or obstruct any person, or act in an improper manner; and

(b)    expressly committed to compliance with the requirements of s 500 of the FW Act.

93    Attached to Mr Lacy’s report was correspondence that the CFMEU sent to him on 16 August 2021, by which it requested that he provide training to Mr Tzimas. Amongst other things, that correspondence recorded that:

(1)    Mr Tzimas had previously received training from Mr Lacy on 6 October 2020 “following his admission in Federal Court proceeding VID 300 of 2018” and had also previously “participated in the general training that [Mr Lacy had] provided to CFMEU officials about their responsibilities and obligations under workplace laws on 15 March 2021”;

(2)    the CFMEU wished to retain Mr Lacy to provide Mr Tzimas “…with an opportunity to reflect on and learn from his conduct in a formal and structured learning setting”;

(3)    the CFMEU wished “…to ensure that [Mr] Tzimas has sufficient knowledge to facilitate his compliance with the law in the future”;

(4)    Mr Lacy was asked, in particular, to focus upon the contraventions to which Mr Tzimas had admitted in this matter and:

(a)    why Mr Tzimas’s conduct on 4 December 2019 contravened s 500 of the FW Act;

(b)    what alternative steps Mr Tzimas could have taken to address the concerns that he held on that day; and

(c)    what steps Mr Tzimas needs to take in the future “…to ensure that contravention of s 500 does not occur”; and

(5)    Mr Lacy was requested to prepare a report in respect of the training provided to Mr Tzimas, for potential use in these proceedings.

94    That the CFMEU commissioned Mr Lacy to provide training, and that Mr Tzimas agreed to undertake it, undoubtedly speaks in their favour. This is not the first occasion on which the CFMEU has led evidence in a matter of this kind regarding its efforts to educate its officials on the limits of their rights of entry: see eg, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101, [51] (Snaden J); Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Titan Cranes Case) [2022] FCA 774 (Logan J).

95    Mr Tzimas’s second affidavit also deposes to the CFMEU having engaged the services of Damian Karaula from “Mentor Hub” to deliver interactive “resilience training” to some of its organisers. Mr Tzimas participated in six group training sessions with Mr Karaula between May 2022 and July 2022, each of two hours’ duration.

96    Again, that Mr Tzimas was willing to undergo training designed to help him control his emotions plainly reflects well on him. The CFMEU’s willingness to organise it is similarly constructive. Each reflects an acceptance of a problem and an attempt to address it. That, in turn, properly informs the court’s assessment of the level of severity that the imposition of pecuniary penalties should visit in order specifically to deter future repetition of conduct such as that in which Mr Tzimas engaged.

Size

97    The CFMEU is a “large, asset rich, and well-resourced industrial organisation”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Werribee Shopping Centre Case) [2017] FCA 1235, [25] (Tracey J). There was no suggestion to the contrary.

Course of conduct

98    The respondents contend that, in fashioning penalties appropriate to the circumstances of this matter, the court should be alive to the fact that the contraventions are properly understood to have arisen out of the same visit, were of the same derisory nature, and were all directed towards people who were trying to facilitate or restart the work that Mr Tzimas and Mr Buckley succeeded in delaying.

99    The so-called “course of conduct” and “totality” principles are tools that are used to assist the court in arriving at penalties appropriate to given circumstances. Where multiple statutory contraventions are committed by means of a single course of conduct, the court should be careful to impose separate pecuniary penalties for each of the contraventions that, when aggregated, represent a single penalty appropriate to punish the single course of conduct concerned: Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243, 294-295 [226]-[227] (Allsop CJ, Middleton and Robertson JJ) citing Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 (Moore, Middleton and Gordon JJ).

100    The course of conduct principle recognises that care ought to be taken so that an offender is not punished more than once for what is essentially the same wrongdoing: Royer v Western Australia (2009) 197 A Crim R 319, 328 [22] (Owen JA, with whom Miller JA agreed in the result, Buss JA dissenting). In assessing what penalty or penalties are appropriate for the contraventions, a court may (but will not necessarily) conclude that a single penalty ought to be imposed for multiple contraventions arising out of a course of conduct: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69, [181] (Rangiah J, with whom Ross J agreed in the result, Flick J dissenting).

101    Presently, it may be accepted that Mr Tzimas’s conduct all occurred during the course of a single site visit and that there were elements common to each statement that he made in contravention of s 500 of the FW Act. That, though, is not sufficient to warrant treatment of what occurred as constituting a single course of conduct. Mr Tzimas was in attendance at the Site for more than six hours on 3 and 4 December 2019. His contravening conduct—and, indeed, that of the CFMEU—involved different representations made during the course of different (and deliberate) interactions, which took place at different times and involved multiple different people. Each instance of conduct was discretely wrongful.

102    So to observe is not to doubt that, by application of the totality principle, the court should be concerned to impose penalties that take account of the nature of the respondents’ wrongdoing in its entirety. I consider that to be the better approach to ensuring that the quantum of what is to be imposed is no more than is necessary to deter, both specifically and generally, the repetition of similar wrongdoing.

Other considerations

103    Mr Tzimas ceased being a permit holder under pt 3-4 of the FW Act as of 19 December 2023. Plainly, he is no longer capable of contravening s 500 of the FW Act. Specific deterrence, therefore, looms less large than it otherwise might in his case.

104    Furthermore, the interactions that Mr Tzimas has had with Mr Drury and other WorkSafe inspectors since December 2019 (and prior to his ceasing to hold an entry permit) have been good; and, in his second affidavit, Mr Tzimas expressed some confidence that he would be able to remain calm when confronted with high-pressure situations in the course of performing his duties in the future.

105    However, it is to be noted that the training that Mr Tzimas has undergone appears not to have been entirely successful. He has engaged in conduct in breach of s 500 of the FW Act on at least one occasion since undergoing training with Mr Lacy AO (see above, [73]). There might be any number of explanations for that. Perhaps Mr Tzimas’s emotions got the better of him. Perhaps he didn’t take the training seriously. Perhaps it wasn’t very clear. It is not necessary to speculate. What is clear is that Mr Tzimas appears not to have learned quite as much from it as might have been hoped; and that the penalty to be imposed upon him should be fashioned under the light of that reality.

Totality

106    The so-called “totality principle” requires that, before proceeding to levy multiple penalties, the court should consider whether the total of what is proposed is proportionate to the wrongdoing that warrants them. Given the scale of what I propose to impose, consideration of the totality of the penalties that are in contemplation is particularly important. There can be no doubt that penalties in the order of what I am minded to impose represent a significant imposition upon the respondents. There is good reason why they should. The court must exact a heavy toll: not merely to ensure that Mr Tzimas and the CFMEU are brought to account for the obnoxious, bullying interactions in which they indulged; but also to serve as a deterrent to others who might otherwise be minded to act in an inappropriate manner when exercising rights of entry pursuant to pt 3-4 of the FW Act.

DISPOSITION

107    Despite its efforts to reform, contraventions of s 500 of the FW Act engaged in by CFMEU officials continue to find their way before courts. It is plain that the CFMEU, in particular, requires yet further incentive to rein in the sorts of hostile mistreatment and belligerence that seems far too commonly committed in its name. In all of the circumstances, I am satisfied that it is appropriate to impose upon the CFMEU penalties totalling $150,000.00. That figure is calculated as follows, namely:

(1)    for its involvement in each of the six contraventions committed by Mr Tzimas and Mr Buckley (above, [21]), $34,650.00—or 55% of the maximum available penalty; less

(2)    a reduction of $57,900.00, to bring the cumulative penalty into line with the totality of the CFMEU’s wrongdoing.

108    In the case of Mr Tzimas, I am satisfied that less is required by way of penalty to deter the repetition of his conduct. In terms of specific deterrence, it is to be noted that Mr Tzimas no longer possesses an entry permit and, therefore, has no immediate means of repeating any contravention of s 500 of the FW Act. Nonetheless, his conduct, his history and his failure, despite effort, wholly to rehabilitate are significant. The court must be careful to impose upon him pecuniary penalties that will serve as a warning to those in similar positions who might otherwise be minded to engage in similar conduct. In all of the circumstances, I am satisfied that it is appropriate to impose upon Mr Tzimas pecuniary penalties totalling $18,000.00. That figure is calculated as follows, namely:

(1)    for his having engaged in each of the five contraventions of s 500 that he committed (above, [21]), $4,410.00—or 35% of the maximum available penalty; less

(2)    a reduction of $4,050.00, to bring the cumulative penalty into line with the totality of his wrongdoing.

109    The amounts outlined above should be made payable within 28 days. There shall be no declaratory relief. The FWO did not seek an order for costs and, in any event, s 570(1) of the FW Act almost certainly prohibits the court from making one. There will be no order as to costs.

Associate:

Dated:    18 July 2024