FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Mining and Energy Union (The Oaky North Coal Mine Case) [2024] FCA 1093

ORDERS

THE COURT DECLARES THAT:

1.    The Court declares the first respondent contravened s 346 of the Fair Work Act 2009 (Cth) (FW Act) on a total of 52 occasions when:

(a)    the second respondent verbally abused and/or filmed six Prejudiced Workers as they passed through the Protests on their way to or from attending work at the Oaky North Underground Coal Mine (the Mine) on 6 July 2017, 11 July 2017, 13 August 2017, 18 August 2017, 7 September 2017 (two instances, at approximately 16:29 and at approximately 18:14), 11 September 2017 and 18 September 2017 (two instances, at approximately 17:18 and at approximately 18:15);

(b)    the second respondent published derogatory social media material in relation to four Prejudiced Workers on the Miners at the Coal Face QLD Branch Facebook page on 6 August 2017, 18 August 2017, 13 September 2017, 23 September 2017 and between 23 November 2017 and 27 November 2017;

(c)    the second respondent advised, encouraged or incited Dan Farmer to publish derogatory social media material in relation to four Prejudiced Workers on the Miners at the Coal Face QLD Branch Facebook page on 20 October 2017, being a list of names described as “Oaky North Scabs”, and, as an administrator of the Miners at the Coal Face QLD Branch Facebook page, failed to remove the post by Mr Farmer until 28 February 2018;

(d)    the third respondent erected signs on the roadside between Oaky No. 1 Underground Coal Mine and Grasstree Road on 7 August 2017, containing headings which read “Oaky North Scabs” along with the names of five Prejudiced Workers and other Workers from the Mine (Scab Signs);

(e)    the third respondent, as an administrator of the Miners at the Coal Face QLD Branch Facebook page, failed to remove the derogatory social media material posted by Mr Farmer in relation to four Prejudiced Workers on the Miners at the Coal Face QLD Branch Facebook page on 20 October 2017, being a list of names described as “Oaky North Scabs”, until 28 February 2018;

(f)    the sixth respondent published derogatory social media material in relation to two Prejudiced Workers on the Miners at the Coal Face QLD Branch Facebook page, being a list of names labelled as “Oaky North Scabs”, in September or October 2017; and

(g)    Keith Thompson verbally abused two Prejudiced Workers as they passed through the Protests on their way to or from attending work at the Mine on 24 September 2017.

2.    The Court declares the first respondent contravened s 348 of the FW Act on a total of 190 occasions when:

(a)    the second respondent verbally abused and/or filmed six Prejudiced Workers and 16 Workers as they passed through the Protests on their way to or from attending work at the Mine on 6 July 2017, 11 July 2017, 13 August 2017, 18 August 2017, 7 September 2017 (two instances, at approximately 16:29 and at approximately 18:14), 11 September 2017 and 18 September 2017 (two instances, at approximately 17:18 and at approximately 18:15);

(b)    the second respondent published derogatory social media material in relation to five Prejudiced Workers and 15 Workers on the Miners at the Coal Face QLD Branch Facebook page on 26 July 2017, 6 August 2017, 18 August 2017, 13 September 2017, 23 September 2017 and between 23 November 2017 and 27 November 2017;

(c)    the second respondent advised, encouraged or incited Mr Farmer to publish derogatory social media material in relation to four Prejudiced Workers and 13 Workers on the Miners at the Coal Face QLD Branch Facebook page on 20 October 2017, being a list of names described as “Oaky North Scabs”, and, as an administrator of the Miners at the Coal Face QLD Branch Facebook page, failed to remove the post by Mr Farmer until 28 February 2018;

(d)    the third respondent erected the Scab Signs naming five Prejudiced Workers and seven Workers on 7 August 2017;

(e)    the third respondent, as an administrator of the Miners at the Coal Face QLD Branch Facebook page, failed to remove the derogatory social media material posted by Mr Farmer in relation to four Prejudiced Workers and 13 Workers on the Miners at the Coal Face QLD Branch Facebook page on 20 October 2017, being a list of names described as “Oaky North Scabs”, until 28 February 2018;

(f)    the sixth respondent published derogatory social media material in relation to two Prejudiced Workers and six Workers on the Miners at the Coal Face QLD Branch Facebook page, being a list of names labelled as “Oaky North Scabs”, in September or October 2017;

(g)    John Love verbally abused a Worker as he passed through the Protests on his way to or from attending work at the Mine on 29 August 2017; and

(h)    Mr Thompson verbally abused two Prejudiced Workers and two Workers as they passed through the Protests on their way to or from attending work at the Mine on 24 September 2017.

3.    The Court declares the second respondent contravened s 346 of the FW Act on a total of 39 occasions when he:

(a)    verbally abused and/or filmed six Prejudiced Workers as they passed through the Protests on their way to or from attending work at the Mine on 6 July 2017, 11 July 2017, 13 August 2017, 18 August 2017, 7 September 2017 (two instances, at approximately 16:29 and at approximately 18:14), 11 September 2017 and 18 September 2017 (two instances, at approximately 17:18 and at approximately 18:15);

(b)    published derogatory social media material in relation to four Prejudiced Workers on the Miners at the Coal Face QLD Branch Facebook page on 6 August 2017, 18 August 2017, 13 September 2017, 23 September 2017 and between 23 November 2017 and 27 November 2017; and

(c)    advised, encouraged or incited Mr Farmer to publish derogatory social media material in relation to four Prejudiced Workers on the Miners at the Coal Face QLD Branch Facebook page on 20 October 2017, being a list of names described as “Oaky North Scabs”, and, as an administrator of the Miners at the Coal Face QLD Branch Facebook page, failed to remove the post by Mr Farmer until 28 February 2018.

4.    The Court declares the second respondent contravened s 348 of the FW Act on a total of 148 occasions when he:

(a)    verbally abused and/or filmed six Prejudiced Workers and 16 Workers as they passed through the Protests on their way to or from attending work at the Mine on 6 July 2017, 11 July 2017, 13 August 2017, 18 August 2017, 7 September 2017 (two instances, at approximately 16:29 and at approximately 18:14), 11 September 2017 and 18 September 2017 (two instances, at approximately 17:18 and at approximately 18:15);

(b)    published derogatory social media material in relation to five Prejudiced Workers and 15 Workers on the Miners at the Coal Face QLD Branch Facebook page on 26 July 2017, 6 August 2017, 18 August 2017, 13 September 2017, 23 September 2017 and between 23 November 2017 and 27 November 2017; and

(c)    advised, encouraged or incited Mr Farmer to publish derogatory social media material in relation to four Prejudiced Workers and 13 Workers on the Miners at the Coal Face QLD Branch Facebook page on 20 October 2017, being a list of names described as “Oaky North Scabs”, and, as an administrator of the Miners at the Coal Face QLD Branch Facebook page, failed to remove the post by Mr Farmer until 28 February 2018.

5.    The Court declares the third respondent contravened s 346 of the FW Act on a total of nine occasions when he:

(a)    erected the Scab Signs naming five Prejudiced Workers on 7 August 2017; and

(b)    as an administrator of the Miners at the Coal Face QLD Branch Facebook page, failed to remove the derogatory social media material posted by Mr Farmer in relation to four Prejudiced Workers on the Miners at the Coal Face QLD Branch Facebook page on 20 October 2017, being a list of names described as “Oaky North Scabs”, until 28 February 2018.

6.    The Court declares the third respondent contravened s 348 of the FW Act on a total of 29 occasions when he:

(a)    erected the Scab Signs naming five Prejudiced Workers and seven Workers on 7 August 2017; and

(b)    as an administrator of the Miners at the Coal Face QLD Branch Facebook page, failed to remove the derogatory social media material posted by Mr Farmer in relation to four Prejudiced Workers and 13 Workers on the Miners at the Coal Face QLD Branch Facebook page on 20 October 2017, being a list of names described as “Oaky North Scabs”, until 28 February 2018.

7.    The Court declares the fourth respondent contravened s 346 of the FW Act on a total of nine occasions when he:

(a)    verbally abused a Prejudiced Worker as he was passing through the Protests on his way to or from attending work at the Mine on 3 July 2017;

(b)    advised, encouraged or incited Paul McKean to verbally abuse three Prejudiced Workers as they passed through the Protests on their way to or from attending work at the Mine on 3 July 2017 (two instances, at approximately 17:10 and at approximately 18:10) and 4 July 2017 (two instances, at approximately 06:23 and at approximately 06:37); and

(c)    advised, encouraged or incited a person at the Protests to verbally abuse a Prejudiced Worker as he passed through the Protests on his way to or from attending work at the Mine on 4 July 2017.

8.    The Court declares the fourth respondent contravened s 348 of the FW Act on a total of 35 occasions when he:

(a)    verbally abused a Prejudiced Worker and four Workers as they passed through the Protests on their way to or from attending work at the Mine on 3 July 2017;

(b)    advised, encouraged or incited Mr McKean to verbally abuse three Prejudiced Workers and nine Workers as they passed through the Protests on their way to or from attending work at the Mine on 3 July 2017 (two instances, at approximately 17:10 and at approximately 18:10) and 4 July 2017 (two instances, at approximately 06:23 and at approximately 06:37); and

(c)    advised, encouraged or incited a person at the Protests to verbally abuse a Prejudiced Worker and two Workers as they passed through the Protests on their way to or from attending work at the Mine on 4 July 2017.

9.    The Court declares the fifth respondent contravened s 346 of the FW Act on a total of 20 occasions when he:

(a)    verbally abused two Prejudiced Workers as they were passing through the Protests on their way to or from attending work at the Mine on 10 September 2017 (nine instances between approximately 18:07 and 18:24); and

(b)    advised, encouraged or incited a person at the protests to verbally abuse two Prejudiced Workers as they were passing through the Protests on their way to or from attending work at the Mine on 10 September 2017.

10.    The Court declares the fifth respondent contravened s 348 of the FW Act on a total of 50 occasions when he:

(a)    verbally abused two Prejudiced Workers and 3 Workers as they were passing through the Protests on their way to or from attending work at the Mine on 10 September 2017 (nine instances between approximately 18:07 and 18:24); and

(b)    advised, encouraged or incited a person at the Protests to verbally abuse two Prejudiced Workers and three Workers as they were passing through the Protests on their way to or from attending work at the Mine on 10 September 2017.

11.    The Court declares the sixth respondent contravened s 346 of the FW Act on a total of two occasions when he published derogatory social media material in relation to two Prejudiced Workers on the Miners at the Coal Face QLD Branch Facebook page, being a list of names labelled as “Oaky North Scabs”, in September or October 2017.

12.    The Court declares the sixth respondent contravened s 348 of the FW Act on a total of eight occasions when he published derogatory social media material in relation to two Prejudiced Workers and six Workers on the Miners at the Coal Face QLD Branch Facebook page, being a list of names labelled as “Oaky North Scabs”, in September or October 2017.

THE COURT ORDERS THAT:

13.    The Court orders the first respondent pay penalties pursuant to s 546(1) of the FW Act in the amount of $535,500 in respect of the contraventions set out in Order 2 above.

14.    The Court orders the second respondent pay penalties pursuant to s 546(1) of the FW Act in the amount of $85,680 in respect of the contraventions set out in Order 4 above.

15.    The Court orders the third respondent pay penalties pursuant to s 546(1) of the FW Act in the amount of $10,710 in respect of the contraventions set out in Order 6 above.

16.    The Court orders the fourth respondent pay penalties pursuant to s 546(1) of the FW Act in the amount of $12,930 in respect of the contraventions set out in Order 8 above.

17.    The Court orders the fifth respondent pay a penalty pursuant to s 546(1) of the FW Act in the amount of $6,930 in respect of the contraventions set out in Order 10 above.

18.    The Court orders the sixth respondent pay a penalty pursuant to s 546(1) of the FW Act in the amount of $5,355 in respect of the contraventions set out in Order 12 above.

19.    The Court orders the penalties referred to in Orders 13 to 18 above be paid to the Consolidated Revenue Fund of the Commonwealth within 28 days of the date of the Court’s order.

20.    The Court orders the first respondent pay compensation pursuant to s 545(2)(b) of the FW Act to Kane Kenwright in the amount of $10,000 for loss that he has suffered because of the contraventions of the FW Act set out at Orders 1, 3, 5 and 11 above.

Definitions

    Miners at the Coal Face QLD Branch Facebook page is a web page published by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) on the social media platform Facebook under the title “Miners at the Coal Face QLD Branch”.

    Prejudiced Workers: The definition in paragraph 45 of the Second Further Amended Statement of Claim filed on 28 August 2024 is adopted.

    Protests is the collective defined term in paragraph 39 of the Second Further Amended Statement of Claim filed on 28 August 2024 for a number of community protests established at the following locations during the period 14 May 2017 to 28 February 2018:

(a)    from on or around 14 May 2017 to on or around 26 June 2017 at the corner of Maywin Drive and Oaky Creek Mine Access Road organised by the CFMMEU (First Protest);

(b)    from on or around 26 June 2017 to on or around 21 July 2017, at the intersection of Grasstree Road and Oaky Creek Mine Access Road, being one of the access points to the Mine (Second Protest);

(c)    from on or around 24 July 2017 to on or around 12 August 2017 at the corner of Tieri Road and Grasstree Road (Third Protest); and

(d)    from 13 August 2017 to 28 February 2018 at the intersection of Grasstree Road and Oaky Creek Mine Access Road (Fourth Protest).

    Workers: the definition in paragraph 48 of the Second Further Amended Statement of Claim filed on 28 August 2024 is adopted.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    In this proceeding, the applicant alleges that the respondents contravened ss 346 and 348 of the Fair Work Act 2009 (Cth) (the FW Act) on multiple occasions in 2017 and 2018 in the course of an industrial dispute at the Oaky North Underground Coal Mine (the Mine) in Queensland.

2    In the course of negotiations for a new enterprise agreement, employees who were members of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) commenced protected industrial action, including stoppages of work. That was met with protected industrial action by the employer consisting of locking out those employees. The employer continued to operate the Mine using contractors and employees who were not CFMMEU members (the Workers). The CFMMEU workers then staged protests near the entrance to the Mine site over a period of about seven months.

3    The allegations against the respondents are, in essence, that they verbally abused the Workers as they passed the protests on their way to and from work, published derogatory material about the Workers on a Facebook page, and erected signs with the names of particular workers under the heading, “Oaky North Scabs”.

4    The proceeding was initially commenced against the CFMMEU and five of its officials, but was complicated by the demerger of the CFMMEU. The Mining and Energy Union (the MEU) has now been substituted as the first respondent in place of the CFMMEU. The parties are agreed that the MEU assumes responsibility for the relevant conduct of the CFMMEU.

5    The demerger, a series of interlocutory applications and extensive negotiations resulted in considerable delay in bringing the proceeding to a conclusion. However, the respondents have now admitted the contraventions alleged against them. The parties have also reached agreement as to appropriate declaratory orders and pecuniary penalties.

6    The following CFMMEU officials are respondents to the proceeding:

(a)    Stephen Smyth, who was the District President of the Queensland District Branch of the Mining and Energy Division (ME Division);

(b)    Chris Brodsky, who was the District Vice President of the Queensland District Branch of the ME Division;

(c)    Jade Ingham, who was the Divisional Branch Assistant Secretary of the Queensland and Northern Territory Construction and General Branch of the Construction and General Division;

(d)    Blake Hynes, who was a delegate of the Queensland and Northern Territory Construction and General Branch of the Construction and General Division; and

(e)    Brodie Brunker, who was Broadmeadow Mine Lodge Assistant Secretary of the Queensland District Branch of the ME Division.

7    The parties propose that the Court:

(a)    make declarations reflecting the admitted contraventions in the form contained in a draft provided to the Court; and

(b)    impose the following penalties on the respondents:

(i)    $535,500 on the MEU;

(ii)    $85,680 on Mr Smyth;

(iii)    $10,710 on Mr Brodsky;

(iv)    $12,930 on Mr Ingham;

(v)    $6,930 on Mr Hynes; and

(vi)    $5,355 on Mr Brunker.

8    It is necessary for the Court to determine whether it is satisfied that the proposed declarations and penalties are appropriate in all the circumstances. In addition, it is necessary to determine the applicant’s application for an order that the MEU pay compensation to a particular worker affected by the contraventions for mental distress he suffered.

The facts

9    In April 2015, Oaky Creek Coal Pty Ltd (OCC) and employees covered by the Oaky North Mine Enterprise Agreement 2012 (EA Employees) commenced negotiations for a new enterprise agreement.

10    In May 2017, the EA Employees who were CFMMEU members commenced protected industrial action (being employee claim action) including bans on training, overtime and stoppages of work.

11    In July 2017, OCC commenced protected industrial action (being employer response action) and locked those who had taken part in the employee claim action out of the Mine.

12    Until about February 2018, OCC continued to operate the Mine using the Workers, who were contractors or employees who were not members of the CFMMEU. During that period, the respondents variously engaged in verbal abuse of the Workers, published derogatory material about Workers on a Facebook page, and erected signs near the entrance to the Mine site with the names of particular Workers under the heading, “Oaky North Scabs”.

13    Examples of the verbal abuse directed towards the Workers included, “maggot!”, “fucking grub”, “dog, dog, dog”, “scab” and “fucking grub cunt”.

14    A Facebook group called “Miners at the Coal Face QLD Branch” had 1,700 members, who could view, comment on and “react” to posts made to the page. Examples of those posts included:

(a)    “…be careful what we say on social media about her and her SCAB husband!! Its quite clear how desperate these people are acting…” (in reference to a particular worker and his wife);

(b)    a post listing the names of some of the workers who continued to work and describing them as “Oaky North Scabs”; and

(c)    images of some of the Workers superimposed with text such as, “[name deleted]… NO SHAME IN THIS BLOKE CROSSING THE OAKY NORTH PICKET LINE”, and “HD BOSS SUPPLYING MOST OF THE LABOUR TO CROSS THE OAKY NORTH PICKET LINE … [name deleted]…”.

15    Mr Brodsky erected signs that specifically named some of the Workers as “Oaky North Scabs”. In the leadup to the erection of the signs, Mr Brodsky sent an email proposing that CFMMEU members return to rolling stoppages so that they could resume work at the Mine and, “identify who the scabs are with some certainty, this will assist in pin pointing that there(sic) lives will be forever shit in the industry once we get a black leg list to all Lodges of these grubs”.

16    The conduct engaged in by each respondent is more fully summarised in the Annexure to these reasons.

17    The conduct directed towards certain Workers had the effect, directly or indirectly, of prejudicing them in their employment or in relation to a contract of services. The prejudicial impacts included vilification, ostracisation, intimidation, emotional distress and injury to their reputation.

Reasons for conduct

18    Section 346 of the FW Act provides:

346 Protection

A person must not take adverse action against another person because the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)     does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

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

19    Section 348 of the FW Act provides:

348 Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

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

20    The respondents engaged in the conduct:

(a)    to negate the choice of the Workers to engage in the industrial activity described below; and/or

(b)    because some of the Workers (being those who were prejudiced as a result) had not engaged in the industrial activity described below.

21    The industrial activity included promoting or participating in the protests, representing or advancing the CFMMEU’s claims, views or interests (all of which were directed towards the furtherance of their industrial objectives) and participating in the CFMMEU’s employee claim action.

Unlawful/illegitimate nature of conduct

22    The verbal abuse and scab signs were unlawful and/or illegitimate in that they:

(a)    were abusive, threatening, aggressive and disproportionate in the absence of any legitimate interest in engaging in it; and

(b)    constituted unlawful assembly, a public nuisance and unlawful stalking pursuant to the relevant legislation.

23    The social media abuse was unlawful and/or illegitimate in that it:

(a)    was abusive, threatening, aggressive and disproportionate in the absence of any legitimate interest in engaging in it; and

(b)    constituted the offence of using a carriage service to menace, harass or cause offence pursuant to the relevant legislation.

24    Additionally, the verbal abuse engaged in by John Love on 29 August 2017 (e.g., “I’ll rip your fucking head straight off cunt”, “you fucking faggot” and “I’ll fucking kill you you cunt”), which is attributed to the MEU, was unlawful and/or illegitimate in that it constituted unlawful threats, assaults and unlawful sexual harassment pursuant to the relevant legislation.

Principles concerning agreed penalties and orders

25    In Commonwealth v Director, Fair Work Building Industry (2015) 258 CLR 482 (Agreed Penalties Case), the High Court addressed the use of agreed penalties in civil penalty proceedings, including the role of the regulator in formulating and proposing appropriate penalties to achieve deterrence and to efficiently deploy regulatory resources. The High Court held that it is “highly desirable” for a court to accept an agreed penalty proposed by the parties, provided the court considers that the agreed penalty is an appropriate penalty in the circumstances: at [58]–[59]; see also Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317 at [22]–[23]. The High Court observed at [46]:

…there is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and that the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers.

26    The Court’s role is not to simply “rubber stamp” the parties’ agreement: Australian Competition and Consumer Commission v Employsure Pty Ltd (2023) 407 ALR 302; [2023] FCAFC 5 at [111]. But, provided that the Court considers the agreed penalty is an appropriate one, the Court should not depart from the agreed penalty merely because it might have been disposed to select some other figure: Agreed Penalties Case at [47].

27    If the Court is satisfied that the orders sought are within power and appropriate, it “should exercise a degree of restraint when scrutinising the proposed settlement terms, particularly where both parties are legally represented”: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 at [72].

Declaratory orders

28    Declaratory orders may, “serve to record the Court’s disapproval of the contravening conduct, vindicate the regulator’s claim that the respondent contravened the provisions, assist the regulator to carry out its duties, and deter other persons from contravening the provisions”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at [93].

29    It is appropriate to make declarations substantially in the form agreed by the parties.

Pecuniary penalties

30    The purpose of a pecuniary penalty is to promote the public interest in compliance and to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravener and by others who are in a position to contravene the legislation: Agreed Penalties Case at [55].

31    A penalty is appropriate if it is, “no more than might be considered to be reasonably necessary to deter further contraventions of a like kind” by the contravener and others: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (Pattinson) at [10] In this regard, an appropriate penalty will strike a reasonable balance between deterrence and oppressive severity: Pattinson at [41].

Course of conduct

32    As s 557 of the FW Act does not apply to ss 346 and 348 of the FW Act, it has no application in this matter.

33    The “common law course of conduct” principle involves “examin[ing] all the conduct and enquir[ing] how its course and its explanation factually and legally informs the imposition of penal orders, in particular to avoid double punishment”: Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40 at [91]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (2019) 269 FCR 262 at [11]–[12]. One way of posing the relevant question is whether “there is an interrelationship between the legal and factual elements” of the contraventions such that the contravener would be penalised twice for what is in substance the same wrong: Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1; [2010] FCAFC 39 at [39] (Middleton and Gordon JJ).

34    In the present case, the parties agree that the common law course of conduct principle should apply in the manner outlined in the Statement of Agreed Facts. Specifically, where there are multiple contraventions of ss 346 or 348 of the FW Act arising out of the same kind of conduct: the “kinds” of conduct engaged in being the verbal abuse, social media abuse and scab signs. For example, multiple instances of verbal abuse by the same person on the same day have been grouped into a single course of conduct.

35    While the course of conduct principle does not necessarily mean the Court should impose only one penalty in relation to multiple contraventions, there is authority for the proposition that it may be justified in complex cases or where the course is agreed or accepted as appropriate by the parties. That was the case in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union, where the parties had reached an agreement as to the number of contraventions and the number of penalties to be imposed. The Full Court held at [149]:

In an appropriate case, however, the Court may impose a single penalty for multiple contraventions where that course is agreed or accepted as being appropriate by the parties. It may be appropriate for the Court to impose a single penalty in such circumstances, for example, where the pleadings and facts reveal that the contraventions arose from a course of conduct and the precise number of contraventions cannot be ascertained, or the number of contraventions is so large that the fixing of separate penalties is not feasible, or there are a large number of relatively minor related contraventions that are most sensibly considered compendiously. As revealed generally by the reasoning in Commonwealth v Director, FWBII, there is considerably greater scope for agreement on facts and orders in civil proceedings than there is in criminal sentence proceedings. As with agreed penalties generally, however, the Court is not compelled to accept such a proposal and should only do so if it is considered appropriate in all the circumstances. It is also at the very least doubtful that such an approach can be taken if it is opposed or the proceedings are defended.

36    The Full Court endorsed this approach in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (2020) 283 FCR 404 at [82]. Further, it was followed in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) (No 3) [2023] FCA 1324 at [33].

37    It is appropriate to impose a single penalty for each group of contraventions in this matter having regard to the agreement reached between the parties.

Civil double jeopardy

38    Section 556 of the FW Act provides that “[i]f a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct”.

39    The language of s 556 of the FW Act contemplates that the section will only be engaged if “particular conduct” that has caused a contravention of a civil remedy provision gives rise to the contravention of another law of the Commonwealth “in relation to that conduct.”

40    The parties agree that where the same particular conduct gives rise to contraventions of both ss 346 and 348 of the FW Act, it is appropriate to impose one penalty in relation to the particular conduct.

Determining the appropriate penalty

41    A list of factors that the Court might consider in determining a deterrent penalty was articulated by French J (as his Honour then was) in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076; [1990] FCA 521 at [42]. This list is not a “rigid catalogue of matters for attention”, and the various factors are to be considered by reference to how they inform the penalty required to achieve deterrence: Pattinson at [19]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [91]. The factors listed by French J provide a useful frame of reference for assessment of the agreed penalties in this case.

Maximum penalties

42    The maximum penalty for a contravention of each of s 346 and s 348 is 60 penalty units for an individual and 300 penalty units for a body corporate: FW Act ss 539, 546(2). The contraventions occurred between 3 July 2017 and 27 November 2017, when the value of a penalty unit was $210: FW Act s 12 and Crimes Act 1914 (Cth) s 4AA (Compilations No 117 and 118).

43    The following table sets out the maximum possible penalties for each respondent and compares the agreed penalties:

Nature and circumstances of the conduct

44    The respondents’ contraventions of ss 346 and 348 of the FW Act arising from the verbal abuse spanned a period of approximately three months (in the context of the broader abuse that spanned a period of five months). During that period, Workers were verbally abused on their way to and from work each day. The verbal abuse was often yelled through loudspeakers by protestors situated on the only road in and out of the Mine. The repeated, sustained and violent nature of the abuse would have had a detrimental effect on the mental wellbeing of the Workers.

45    In addition to the verbal abuse, some Workers were singled out on “scab” lists that were published on Facebook and displayed on signs that were physically erected around the Mine. In Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154 at [16], the Full Federal Court was prepared to infer that similar conduct had a, “natural tendency to engender fear for the personal safety of the persons concerned”, as well as, “diminish the standing of the [employees] with their fellow employees”. It is appropriate to draw similar inferences in this case.

46    The respondents’ conduct was designed to intimidate the Workers. This is apparent from:

(a)    the CFMMEU’s advice in June or July 2017 that participants in the protests could say, “anything but scab”;

(b)    the CFMMEU’s advice (delivered by Mr Brodsky) in June or July 2017 that participants in the protests, “should feel free to make their feelings felt, after all the contractors are in the Mine performing the members’ jobs so the members do not have to be nice to them”; and

(c)    the aggressive and offensive language used by the CFMMEU officials themselves at the protests, including:

(i)    Mr Smyth’s use of, “fucking scab”, “cunt”, “maggot” and “fucking grub”, “dirty rat” and “fucking moron”;

(ii)    Mr Ingham’s use of, “You’re a fucking maggot. What are you doing you maggot”; and

(iii)    Mr Hynes’ use of, “I hope you hit a tree ya fucking grub cunt”, “fucking dog”, “Hit a tree you maggot cunt” and “Oi you fucking mutt grub dog cunt. I hope you die. Look at the head on you. Boo. Watch the tree you fucking dog ridden flea dog cunt mate. You fucking mutt cunt dog”.

47    The respondents’ intent in engaging in such intimidating and threatening conduct was to bring about what they perceived to be a favourable industrial outcome. They did so in circumstances where they at least ought to have known that such conduct was unlawful.

Similar prior conduct by the respondents

48    It is important to observe that the applicant did not seek to attribute any part of the CFMMEU’s history of contraventions of industrial legislation to the MEU. The applicant proceeds on the basis that the MEU has no relevant history of contraventions.

49    Mr Ingham has previously been found to have contravened s 417 of the FW Act (organising unprotected industrial action) in 2014, which resulted in the imposition of a pecuniary penalty of $2,500 in July 2016 (that is, prior to the conduct that is the subject of these proceedings): Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCCA 1692. While the case involved a different section of the FW Act, his conduct was similar in that it was found to be, “calculated and deliberate”, and, “a conspicuous public display of civil disobedience”: at [19]–[20].

50    Mr Ingham has also been found to have contravened ss 343, 417 and 421 of the FW Act (coercion, organising unprotected industrial action and contravening an order of the Fair Work Commission concerning industrial action) in 2013, which resulted in the imposition of a pecuniary penalty of $30,000 in March 2018: Australian Building and Construction Commissioner v Ingham (No 2) (Enoggera Barracks Case) [2018] FCA 263. Again, there are parallels with Mr Ingham’s behaviour in that matter, which was described as, “coercive and intimidatory”: at [67].

51    Mr Hynes has been found to have contravened s 500 of the FW Act (hindering and instructing by permit holder) in five separate proceedings: Australian Building and Construction Commissioner v Hynes & Anor [2019] FCCA 3145 (where a penalty of $4,400 was imposed); Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Toowoomba Bypass Case) [2021] FCA 1128 ($8,000 penalty); Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FCA 36 ($12,000 penalty); Fair Work Ombudsman v Albert (No 3) [2023] FCA 220 ($12,000 penalty); Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) [2023] FCA 219 ($15,000 penalty) The total of the pecuniary penalties imposed was $51,400.

52    In Australian Building and Construction Commissioner v Hynes & Anor, while the proceedings involved a different section of the FW Act, the conduct was similar in that Mr Hynes used words including, “you fucking dog cunt”, and, “We’re going to sue you, you grabbed my throat; you fucking dog cunt”: at [5], [9]. The Court found that the words used were objectively offensive, unprovoked and aggressive: at [21].

Whether the contravention arose out of the conduct of senior management

53    The applicant submits that three of the respondents were in senior positions:

(a)    Mr Smyth, who engaged in significantly more contraventions of the FW Act than the others, was at all relevant times the most senior member of the then Queensland District Branch of the ME Division of the CFMMEU;

(b)    Mr Brodsky was at all relevant times the District Vice President of the then Queensland District Branch of the ME Division of the CFMMEU; and

(c)    Mr Brunker was at all relevant times the Broadmeadow Mine Lodge Assistant Secretary of the then Queensland District Branch of the ME Division of the CFMMEU.

Deterrence

54    It is established that the purpose of the imposition of penalties under the FW Act is achieving deterrence, both specific and general.

55    General deterrence must serve a purpose such that the penalty is not seen by others as just, “the cost of doing business”: Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290 at [27].

56    General deterrence is particularly important in this matter given the contravening conduct was a clear attempt to deny the Workers the freedom to choose whether to participate in the industrial activities of the CFMMEU. This is a core tenet of freedom of association: s 3(e) and s 336(b) of the FW Act, which has been recognised as, “one of the most fundamental rights in a free society’: Kruger v Commonwealth (1997) 190 CLR 1 at 91. It is important that others be deterred from behaving in similar manner in future.

57    Specific deterrence is directed to ensuring that a contravener is sufficiently discouraged from embarking upon engaging in the same kind of contravening conduct in the future: Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128 at [50].

58    Specific deterrence is important in this matter given:

(a)    Mr Ingham was seemingly undeterred by the penalty that was imposed on him in 2016;

(b)    Mr Ingham and Mr Hynes both engaged in conduct that signals a proclivity to behave in a similar manner;

(c)    the MEU continues to be a registered organisation; and

(d)    each of Mr Smyth and Mr Brunker hold entry permits within the meaning of s 512 of the FW Act.

Co-operation and contrition

59    A court may take into account a party’s admission as a mitigating factor in assessing penalty: Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at [76], even in circumstances where such admission is not accompanied by any indication of contrition or remorse: Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (2023) 322 IR 233; [2023] FCA 72 at [67]–[93].

60    By admitting the contraventions, the respondents have reduced the cost and complexity of the proceedings, sparing the public purse the cost of a contested hearing. Even though the admissions came late in the proceeding, they followed closely after the applicant made extensive amendments to its Statement of Claim. The parties have agreed to penalties that reflect the respondents’ co-operation.

Totality

61    Where multiple penalties are to be imposed, the totality principle requires the Court to check the cumulative amount imposed to ensure that it is just and appropriate. The Court assesses the final penalty and decides whether a reduction is required to achieve the purpose of deterrence: Pattinson at [41], [46] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). In this case, the applicant submits that no further reduction on the basis of totality is necessary.

Conclusion as to penalties

62    In light of the matters outlined above, I am satisfied that the penalties agreed by the parties are appropriate.

Compensation

63    The applicant seeks an order that the MEU pay compensation pursuant to s 545(2)(b) of the FW Act to Kane Kenwright in the amount of $10,000 for the loss he has suffered because of certain contraventions of the FW Act by the MEU, Messrs Smyth, Brodsky and Brunker. These contraventions include four instances of verbal abuse, four instances of social media abuse and naming Mr Kenwright in the scab signs.

Relevant legal principles for compensation

64    Section 545(1) of the FW Act provides that:

(1)     The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Note 1:    For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:     For limitations on orders in relation to costs, see section 570.

Note 3:     The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

Note 4:     There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).

65    Section 545(2) of the FW Act provides that:

(2)     Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

(a)    an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)     an order awarding compensation for loss that a person has suffered because of the contravention;

(c)    an order for reinstatement of a person;

(d)     an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.

66    Section 545(1) has a restorative purpose: Shizas v Commissioner of Police (2017) 268 IR 71; [2017] FCA 61 at [209]–[211]. Section 545(2) provides examples of the kinds of orders which may be made under s 545(1). The examples in s 545(2) suggest that the power under s 545(1) is directed to making preventative, remedial and compensatory orders: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at [25] and [104]–[111].

67    Under s 545(2)(b), a necessary condition for the making of an order for compensation is that some loss is suffered because of the contravention: Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 at [28]. The amount ordered does not have to compensate a person for the full loss suffered: Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [94], Dafallah v Fair Work Commission (2014) 225 FCR 559 at [157]; Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [24]–[27].

68    Invoking s 545 requires establishing that there is a causal connection between the contraventions and the loss: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [423]. This may involve considering what would have or might have occurred had the contraventions not occurred: Maritime Union of Australia v Fair Work Ombudsman at [28]–[30]; Dafallah v Fair Work Commission at [158]; Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (2021) 304 IR 280; [2021] FCA 348 at [30].

69    A leading case on the issue is Fair Work Ombudsman v Maritime Union of Australia (2015) 252 IR 101; [2015] FCA 814, upheld on appeal in Maritime Union of Australia v Fair Work Ombudsman, where the Court awarded compensation of $20,000 and $40,000 for emotional harm and distress arising out of adverse action contraventions involving the distribution of posters which named and denounced five employees as “scabs”. The compensation was awarded even though the applicant failed to prove that the scab posters caused the affected employees any psychological harm by way of adjustment disorder. At first instance, Siopis J found that the compensation was warranted because, “each of the five named employees experienced a continuing fear of physical harm to themselves and their family, and the fear of damage to property”: at [78]. The Full Court held that there was no error in the primary judge’s exercise of discretion in awarding compensation (at [29]–[34]) and that emotional distress, pain and suffering, the loss of enjoyment of life and like type of losses are capable of constituting loss justifying an order for compensation [104]–[105].

70    The Full Court in James Cook University v Ridd (2020) 278 FCR 566 at [155]–[159] held there was no error in awarding general damages of $90,000 for humiliation, shock and distress even though there was no evidence of psychological injury or any ongoing medical condition.

71    In Fair Work Ombudsman v Foot and Thai Massage Pty Ltd (in liquidation) (No 8) [2024] FCA 483 at [136], the Court held that a lack of expert evidence of mental illness or disorder as a result of contravening conduct was not a bar to the recovery of compensation for non-economic loss. In that matter, the Court ordered compensation to the massage therapists of $30,000 each, which accounted for the emotional harm and distress and the loss of enjoyment of life caused by the various threats they experienced throughout their employment including threats of being sent back to the Philippines or their families being killed in the Philippines.

72    The contraventions by the respondents that Mr Kenwright was the subject of are summarised in the table below:

73    In an affidavit, Mr Kenwright described the personal distress that he experienced as a result of the conduct, including:

    “being called a ‘parasite’, ‘scab’ and ‘grub’ [was] pretty degrading”;

    “Each day as it got closer to the time that I would have to drive past … I felt my stress levels and anger rise”;

    “I was at the time and remain concerned that having my name included on the Scab Sign will make my name known throughout the industry and that it will mean I will pretty much cop shit for the rest of my career… I don’t know if I would be able to handle going through the abuse again”;

    “I was concerned that having my name included… would affect my ability to get a job at other mines or impact on how I was treated if I did get a job at another mine”;

    “I was concerned for my safety and the safety of my family”;

    “I stopped going out for dinner and socialising after work and pretty much didn’t leave my room whilst I was staying in Tieri”; and

    “I felt violated, they had taken my photo from Facebook which was personal and for my family and friends. I didn’t expect people to go through it and post a photo of my face with derogatory comments on it”.

74    The applicant accepts that an “appropriate” order for compensation under ss 545(1) and (2) of the FW Act is confined to compensation for the effects of the contravening conduct of the respondents: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union at [25], [104]; Qantas Airways Ltd v Transport Workers' Union of Australia (2022) 292 FCR 34 at [321]; Maritime Union of Australia v Fair Work Ombudsman at [28]

75    In light of the seriousness of the conduct and the level of distress and anxiety caused to Mr Kenwright by the conduct of the respondents, the amount of $10,000 by way of compensation sought by the applicant for Mr Kenwright in relation to the admitted contraventions of s 346 of the FW Act is clearly appropriate.

Conclusion

76    For the reasons I have given, I am satisfied that it is appropriate to grant the declaratory relief substantially in the terms agreed by the parties and to impose the pecuniary penalties agreed by the parties.

77    I am also satisfied that it is appropriate to order that the MEU pay compensation of $10,000 to Mr Kenwright.

Associate:    

Dated:    19 September 2024

SCHEDULE OF PARTIES

ANNEXURE

CONTRAVENING CONDUCT, NUMBER OF CONTRAVENTIONS AND PENALTIES