FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case) (No 3) [2024] FCA 1201

ORDERS

THE COURT DECLARES THAT:

1.    The third respondent (Mr Mattas) contravened s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCI Act) at the Inner City South State Secondary College Project (Project) by organising unlawful industrial action, by giving directions to cease work, to employees of the following subcontractors on the following dates:

(a)    Statewide Steelfixing (21, 27, 28 and 29 July 2020);

(b)    Euro Precast (21 and 27 July 2020);

(c)    Liebherr Cranes (21, 27, 28, 29, 30, 31 July, and 3 and 4 August 2020);

(d)    Priest & Co (21 July 2020);

(e)    Ministaff (21 July 2020);

(f)    Auscoast Fire (21 July 2020); and

(g)    Venmist (21 and 27, 28, 29 and 30 July 2020).

Contraventions of s 52 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth)

2.    Mr Mattas contravened s 52 of the BCI Act at the Project by organising the industrial action engaged in by employees of the following subcontractors to Broad Construction Pty Ltd (Broad) on the following dates:

(a)    Statewide Steelfixing (27, 28 and 29 July 2020);

(b)    Euro Precast (27 July 2020);

(c)    Liebherr Cranes (27, 28, 29, 30 and 31 July and 3 and 4 August 2020); and

(d)    Venmist (27, 28, 29 and 30 July 2020),

with intent to coerce Broad to remove Phillip Millan (Mr Millan) from the Project and thereby not allocate him the duties or responsibilities of Project Manager.

3.    On 21 July 2020 the second respondent (Mr Blakeley) contravened s 52 of the BCI Act by threatening to take action, namely threatening to cause the employees of subcontractors to refuse to carry out their duties at the Project, with intent to coerce Broad to remove Mr Millan from the Project and thereby not allocate him the duties or responsibilities of Project Manager.

Contraventions by the Construction, Forestry and Maritime Employees Union

4.    Pursuant to s 95 of the BCI Act, the first respondent (the CFMEU) is taken to have engaged in the unlawful conduct of Mr Mattas the subject of Declaration 1 (save to the extent that Mr Mattas’ conduct concerned Ministaff, Auscoast Fire and Venmist employees), and thereby engaged in eight contraventions of s 46 of the BCI Act.

5.    Pursuant to s 95 of the BCI Act, the CFMEU is taken to have engaged in the unlawful conduct of Mr Mattas the subject of Declaration 2 (save to the extent that Mr Mattas’ conduct concerned Venmist employees), and thereby engaged in seven contraventions of s 52 of the BCI Act.

6.    Pursuant to s 95 of the BCI Act, the CFMEU is taken to have engaged in the unlawful conduct of Mr Blakeley the subject of Declaration 3, and thereby engaged in a further contravention of s 52 of the BCI Act.

THE COURT ORDERS THAT:

7.    The third respondent pay pecuniary penalties of:

(a)    $4,400 for his contravention of s 46 of the BCI Act on 21 July 2020; and

(b)    $6,700 for his contraventions of s 52 of the BCI Act.

8.    The second respondent pay a pecuniary penalty of $15,000 for his contravention of s 52 of the BCI Act.

9.    The first respondent pay pecuniary penalties of:

(a)    $25,000 for its contravention of s 46 of the BCI Act arising from the third respondent’s contravention of that provision on 21 July 2020;

(b)    $40,000 for its contraventions of s 52 of the BCI Act arising from the third respondent’s contraventions of that provision to the extent that they involved the employees of Statewide Steelfixing, Euro Precast, Liebherr Cranes and Priest & Co; and

(c)    $40,000 for its contravention of s 52 of the BCI Act arising from the second respondent’s contravention of that provision.

10.    The pecuniary penalties be paid to the Commonwealth of Australia within 60 days.

11.    There be no order as to the costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    In Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FCA 1302, I held that the respondents had committed the following contraventions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCI Act):

(a)    the third respondent, Dean Mattas, contravened s 46 by organising unlawful industrial action taken by employees of seven subcontractors on 21, 27, 28, 29, 30 and 31 July and 3 and 4 August 2020;

(b)    Mr Mattas also contravened s 52 of the BCI Act by organising unlawful industrial action taken by employees of the seven subcontractors on 27, 28, 29, 30 and 31 July and 3 and 4 August 2020 to coerce Broad Construction Pty Ltd (Broad) into not allocating particular duties or responsibilities to one of Broad’s employees, Phillip Millan;

(c)    the second respondent, Andrew Blakeley, contravened s 52 of the BCI Act by making a threat to Broad on 21 July 2020 with intent to coerce Broad into not allocating particular duties or responsibilities to Mr Millan; and

(d)    the first respondent, the Construction Forestry Mining and Energy Union (the Union), was taken under s 95 of the BCI Act to have contravened the same provisions by reason of the actions of Mr Mattas and Mr Blakeley (save to the extent that Mr Mattas’ actions involved Ministaff, Austcoast Fire and Venmist employees).

2    It is now necessary to determine what relief ought to be granted. The applicant seeks declaratory orders and the imposition of pecuniary penalties.

3    I will summarise the factual background and my findings before turning to consider the appropriate relief.

Factual background and findings

4    The summary that follows should be read in light of my earlier reasons. I will generally adopt the abbreviations used in those reasons.

5    In 2020, Broad was engaged to construct the Inner City South State Secondary College in Brisbane.

6    Mr Mattas claimed to have been appointed as a Health and Safety Representative (HSR) for all the employees at the site pursuant to the Work Health and Safety Act 2011 (Qld) (the WHSQ Act). Mr Blakeley was an organiser employed by the Union.

7    On 21 July 2020, Mr Mattas and various HSRs gave a direction purportedly under s 85(1) of the WHSQ Act to the employees of 15 subcontractors (the Employees) to cease work. The direction was given because of concerns that firefighters’ access to a booster assembly (a type of hydrant) was obstructed by scaffolding. The Employees ceased work and did not return until about 12.30 pm on 22 July 2020.

8    Another relevant event on 21 July 2020 was that Mr Millan, a manager employed by Broad, used quite offensive, vulgar and vitriolic language towards Mr Mattas and the other HSRs. That was against a background of Mr Millan having previously engaged in bullying conduct, a complaint having previously been made to Broad about that conduct, and Broad having taken no action to deal with the complaint.

9    On 21 July 2021, Mr Mattas told Mr Kirkwood, referring to Mr Millan, “You need to remove this guy from site. He is out of control, he is a risk”. Mr Blakeley later said that work would not continue until “the risk” (namely, Mr Millan) was removed from the site.

10    Broad took the position that Mr Millan would not be removed from the site, while Mr Mattas and the HSRs maintained that no work would be performed while Mr Millan was on site.

11    In compliance with directions given by Mr Mattas and the HSRs, purportedly under s 85(1) of the WHSQ Act, the Employees refused to work when Mr Millan was at the site on 27, 28, 29, 30 and 31 July and 3 and 4 August 2020.

12    Section 46 of the BCI Act provided:

A person must not organise or engage in unlawful industrial action.

13    Under s 5 of the BCI Act, there was “unlawful industrial action” if action was “industrial action” and was not “protected industrial action”. Section 7(1)(c)(ii) defined “industrial action” to mean, relevantly, “a failure or refusal…to perform any building work at all by employees who attend work”.

14    Section 52(c) of the BCI Act provided, relevantly, that:

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…to…allocate, or not allocate, particular duties or responsibilities to a building employee…

15    The applicant contended that Mr Blakeley and Mr Mattas had contravened s 46 of the BCI Act by, relevantly, organising the unlawful industrial action engaged in by the Employees or some of them.

16    The applicant also alleged that Mr Blakeley and Mr Mattas had contravened s 52 of the BCI Act by organising the stoppages that occurred between 27, 28, 29, 30 and 31 July and 3 and 4 August 2020 (but not the stoppages on 21 and 22 July) with intent to coerce Broad to cease to employ Mr Millan or not allocating duties at the site. The applicant made a further allegation that Mr Blakeley contravened s 52 by making a threat that the employees would not resume work until Mr Millan was removed from the site.

17    I held that Mr Mattas had contravened s 46 of the BCI Act by organising industrial action by employees of seven subcontractors, Statewide Steelfixing, Euro Precast, Liebherr Cranes, Priest & Co, Ministaff, Auscoast Fire and Venmist (the Seven Subcontractors). That was because Mr Mattas had not been validly appointed as “Site-wide HSR” for the employees of the Seven Subcontractors and the directions given by Mr Mattas to those employees not to work were consequently invalid and of no effect. Those employees were not obliged to comply with the directions, and were not excused from their legal obligations to perform work, and therefore took “industrial action” within s 7(1)(c) of the BCI Act that was “unlawful industrial action”. Accordingly, Mr Mattas had contravened s 46 of the BCI Act by organising that unlawful industrial action.

18    I rejected the allegation that Mr Mattas had contravened s 46 of the BCI Act in respect of the stoppages of work by employees of the other subcontractors because HSRs for those subcontractors (the validity of whose appointments was not in issue) had given those employees directions to cease work under s 85(1) of the WHSQ Act, which the employees were required to comply with. Those employees, having been given the directions, were under no legal obligation to then perform work, and did not take “industrial action” within s 7(1)(c) of the BCI Act.

19    In respect of s 52 of the BCI Act, having found that Mr Mattas’ organisation of the industrial action taken by employees of four of the Seven Subcontractors was unlawful, I found that his action was taken against the subcontractors with the intention of overbearing the will or negating the choice of Broad as to whether it should allow Mr Millan to work at the site. I accordingly found that Mr Mattas had contravened s 52 of the BCI Act.

20    I note that my earlier reasons at [435] and [464] incorrectly included Priest & Co, Ministaff and Auscoast Fire as subcontractors against which stoppages of work were organised on 27 to 31 July and 3 and 4 August 2020. Mr Mattas’ contravention of s 52 of the BCI Act concerned stoppages of work by employees of Statewide Steelfixing, Euro Precast, Liebherr Cranes and Venmist.

21    I found that Mr Blakeley had not contravened s 46 of the BCI Act. However, I found that Mr Blakeley’s statement on 21 July 2020 that, “The guys won’t return to work until the risk is removed from Site”, referring to Mr Millan, was an illegitimate action intended to overbear the will or negate the choice of Broad as to whether to have Mr Millan work at the site. This was a contravention of s 52 of the BCI Act.

22    I found that under s 95(1) of the BCI Act, the Union was taken to have engaged in the unlawful conduct of Mr Blakeley. The Union was also taken under that provision to have engaged in the unlawful conduct of Mr Mattas to the extent that it concerned the employees of four subcontractors, Statewide Steelfixing, Euro Precast, Liebherr Cranes and Priest & Co.

Declarations

23    There is a dispute as to the number of contraventions committed by Mr Mattas and, accordingly, as to the appropriate declarations.

24    The applicant submits that Mr Mattas contravened s 46 of the BCI Act on each day that Mr Mattas gave a direction to the employees of the Seven Subcontractors to cease work or not to work. The applicant seeks a declaration of contravention in respect of each day on which a direction was given.

25    The respondents submit that the conduct engaged in by Mr Mattas constitutes three contraventions, being: one contravention of s 46 of the BCI Act on 21 July 2020; one contravention of each of ss 46 and 52 for 27, 28, 29, 30 and 31 July; and one contravention of each of ss 46 and 52 for 3 and 4 August 2020.

26    The respondents submit that Mr Mattas issued a direction not to work on 27 July 2020 when Mr Millan attended the site and that the further directions given on subsequent days when Mr Millan attended, properly understood, were a “continuation of the earlier direction”. The respondents argue that, “the ban on limitation of performance of work was only imposed for so long as Mr Millan was at the site”, and, “there was one ban imposed and it was Mr Mattas’ conduct in organising that industrial action (the imposition of the ban) that constitutes the contravention”.

27    I found that Mr Mattas contravened s 46 of the BCI Act by organising the industrial action taken by the employees of the Seven Subcontractors. Mr Mattas organised that industrial action by directing those employees to cease work on 21 July 2021 (but not 22 July) and by giving them a separate direction not to work on each of 27, 28, 29, 30 and 31 July and 3 and 4 August 2020. Mr Mattas did not impose a single “ban” on the performance of work on 27 July covering any period when Mr Millan was on the site, nor any similar ban on 3 August 2020. Instead, Mr Mattas organised industrial action on each occasion he gave a direction, and so engaged in eight contraventions of s 46 of the BCI Act.

28    I found that Mr Mattas contravened s 52 of the BCI Act by organising the unlawful industrial action taken by the employees of four of the Seven Subcontractors on each of 27, 28, 29, 30 and 31 July and 3 and 4 August 2020 with intent to coerce Broad to remove Mr Millan from the site and thereby not allocate him particular duties or responsibilities. There was a contravention of s 52 on each occasion when Mr Mattas gave a direction to those employees. Mr Mattas engaged in seven contraventions of s 52 of the BCI Act.

29    In this case, the making of a declaratory order would, “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].

30    It is appropriate to make declarations substantially in the form sought by the applicant.

Pecuniary penalties

31    I have already dealt with the number of contraventions that occurred. The remaining issue concerns the appropriate quantum of the pecuniary penalties to be imposed.

The relevant statutory provisions

32    Section 81 of the BCI Act provided:

81    Penalty etc. for contravention of civil remedy provision

(1)    A relevant court, on application by an authorised applicant, may make one or more of the following orders relating to a person (the defendant) who has contravened a civil remedy provision:

(a)    an order imposing a pecuniary penalty on the defendant;

…

Maximum penalty for civil remedy provisions

(2)    The maximum pecuniary penalty is:

(a)    for a Grade A civil remedy provision—1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units; and

(b)    for a Grade B civil remedy provision—100 penalty units if the defendant is a body corporate and otherwise 20 penalty units.

…

Pecuniary penalties

(5)    A pecuniary penalty under paragraph (1)(a) is payable to the Commonwealth, or to some other person if the court so directs. It may be recovered as a debt.

(6)    In determining a pecuniary penalty under paragraph (1)(a), the court must take into account all relevant matters, including:

(a)    the nature and extent of the contravention; and

(b)    the nature and extent of any loss or damage suffered because of the contravention; and

(c)    the circumstances in which the contravention took place; and

(d)    whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.

…

33    Section 83 of the BCI Act provided:

83    Conduct contravening more than one civil remedy provision

(1)    If conduct constitutes a contravention of 2 or more civil remedy provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions.

(2)    However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.

34    Section 84 of the BCI Act provided:

84    Multiple contraventions

(1)    A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil remedy provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.

(2)    However, any pecuniary penalty imposed must not exceed the sum of the maximum penalties that could be ordered if a separate pecuniary penalty were ordered for each of the contraventions.

The principles

35    The primary, if not sole, purpose of a pecuniary penalty is deterrence of further contraventions: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (Pattinson) at [9]. Accordingly, the Court must do what it can to deter non-compliance with the legislation: Pattinson at [66].

36    What is required is, “some reasonable relationship between the theoretical maximum and the final penalty imposed”: Pattinson at [10]. That relationship is established where the penalty does not exceed what is reasonably necessary to achieve the purpose of a provision like s 81(1) of the BCI Act, namely deterrence of future contraventions of a like kind by the contravener and others: see Pattinson at [10]. A penalty must be “proportionate”, in the sense that it, “strikes a reasonable balance between deterrence and oppressive severity”: Pattinson at [41].

37    The maximum penalty is not to be treated as a “yardstick”, with the most “serious” conduct at one end and “minor” conduct at the other: Pattinson at [49]–[55].

38    In a passage that has relevance to the present case, the plurality in Pattinson held at [46]:

It does not follow, as the Full Court suggested and as the CFMMEU argued in this Court, from the rejection of the Full Court’s “notion of proportionality” that s 546 must be taken to require the imposition of a penalty approaching the maximum in relation to any and every contravention by a recidivist offender. It is important to recall that an “appropriate” penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. A contravention may be a “one-off” result of inadvertence by the contravenor rather than the latest instance of the contravenor’s pursuit of a strategy of deliberate recalcitrance in order to have its way. There may also be cases, for example, where a contravention has occurred through ignorance of the law on the part of a union official, or where the official responsible for a deliberate breach has been disciplined by the union. In such cases, a modest penalty, if any, may reasonably be thought to be sufficient to provide effective deterrence against further contraventions.

(Footnotes omitted.)

39    Section 81(b) of the BCI Act requires that all relevant matters be taken into account, including those expressly set out in that provision. In Trade Practices Commission v CSR Ltd (1991) ATPR 41-076; [1990] FCA 521 at [42], French J (as his Honour was then) listed the following factors which may inform assessment of the appropriate penalty:

1.    The nature and extent of the contravening conduct.

2.    The amount of loss or damage caused.

3.    The circumstances in which the conduct took place.

4.    The size of the contravening company.

5.    The degree of power it has, as evidenced by its market share and ease of entry into the market.

6.    The deliberateness of the contravention and the period over which it extended.

7.    Whether the contravention arose out of the conduct of senior management or at a lower level.

8.    Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.

9.    Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

40    A similar list was set out in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 246 ALR 35; [2008] FCAFC 8 at [89]. Such lists are not a rigid or exhaustive catalogue: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith at [91].

41    I will proceed to determine appropriate penalties for each of Mr Mattas, Mr Blakeley and the Union.

Assessment of penalties for Mr Mattas

42    Mr Mattas committed eight contraventions of s 46 of the BCI Act and seven contraventions of s 52 of the BCI Act.

43    Section 83(2) of the BCI Act provides, relevantly, that a person is not liable for more than one pecuniary penalty in relation to the same conduct. Under s 84(1), a single civil penalty order may be made for multiple contraventions where the contraventions are part of a series of contraventions of a similar character.

44    The applicant seeks one penalty for Mr Mattas’ contravention of s 46 of the BCI Act on 21 July 2020. The applicant seeks a second penalty for Mr Mattas’ contraventions of s 52 on 27, 28, 29, 30 and 31 July and 3 and 4 August 2020, but not for the s 46 contraventions on those dates because of s 83(2). The applicant submits that for the purposes of s 84(1), it is entitled to make an election between the s 46 or the s 52 contraventions, citing Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276 at [84]. The respondents have not argued to the contrary.

45    At the time of the contraventions, a penalty unit was $210, resulting in a maximum penalty of $44,400 per contravention for an individual. Under s 84(2) of the BCI Act, the maximum penalty which could be imposed on Mr Mattas for his seven contraventions of s 52 of the BCI Act is $310,800.

46    I have already summarised the circumstances of Mr Mattas’ offending. In my earlier reasons, it was necessary to examine whether Mr Mattas had complied with the statutory preconditions for giving the directions that were purportedly given under s 85(1) of the WHSQ Act. The applicant submits that my findings that Mr Mattas did not have a reasonable concern that workers were exposed to a serious risk to their health and safety emanating from imminent or immediate exposure to a hazard and he did not consult about the risk, should be taken into account in determining the appropriate penalties.

47    However, those findings were ultimately irrelevant to my findings concerning Mr Mattas’ contraventions of s 46 of the BCI Act. The nature of Mr Mattas’ contraventions of s 46 (and consequently of s 52) was more confined. They occurred because Mr Mattas had not been validly appointed as Site-wide HSR and the directions he purported to give under s 85(1) of the WHSQ Act were invalid and of no effect, with the consequence that the employees of the Seven Subcontractors were not obliged or entitled to refuse to work and took unlawful industrial action. Even though Mr Mattas failed to comply with other preconditions for the exercise of power under s 85(1) of the WHSQ Act, those employees would have still been obliged to cease work upon the giving of the directions and would not have taken unlawful industrial action. It is necessary to ensure that Mr Mattas is not punished for conduct and circumstances that did not form the basis of the contraventions that were found to have occurred.

48    Section 85 of the WHSQ Act confers power upon HSRs to direct a cessation of work in particular circumstances involving a serious risk to workers’ health and safety. The conferral of that power is important for ensuring the safety of employees, but also creates the capacity to cause serious economic loss for employers and others. The great power conferred on HSRs carries great responsibility. That is recognised by the WHSQ Act, not only by the imposition of strict conditions for the exercise of the power, but by important requirements under Part 5 Div 3 for the appointment of HSRs (including notice, negotiation, agreement and election) and by providing for their immunity from personal liability.

49    I found that, until the present proceedings were commenced, Broad had not disputed that Mr Mattas had been validly appointed as Site-wide HSR, indicating an acceptance that the proper procedures had been followed under Part 5, Div 3 of the WHSQ Act for Mr Mattas’ appointment. I found that there was negotiation and agreement in compliance with s 55(2) of the WHSQ Act as to a Site-wide work group between the Union and Broad and also between the Union and Blue Star Pacific, Beavis and Bartels, Lindores, L&D Contracting and Centrepoint Plumbing such that Mr Mattas could be regarded as having been validly appointed as the HSR for a work group consisting of the employees of those subcontractors.

50    However, there was no such negotiation and agreement between the Union and the Seven Subcontractors. In the absence of compliance with s 55(2), I found that Mr Mattas was not validly appointed as HSR for any work groups consisting of the employees of these subcontractors and was not qualified to give any direction under s 85(1) to those employees.

51    Mr Mattas’ conduct of giving directions to the employees of the Seven Subcontractors to cease work when he had not ensured that he had been properly appointed as their HSR must be regarded as serious in light of the great power that he wielded. His actions caused the relevant employees to take unlawful industrial action over seven days. His conduct also exposed those employees to the possibility of prosecution for contraventions of s 46 of the BCI Act.

52    In respect of Mr Mattas’ contraventions of s 52 of the BCI Act, there is the additional serious element of organising the unlawful industrial action taken by the employees of four of the Seven Subcontractors with intent to coerce Broad, contrary to its will, to remove Mr Millan from the site and thereby not allocate him particular duties or responsibilities.

53    However, it must be acknowledged that Mr Mattas did not organise the stoppages of work knowing that he had not been validly appointed as HSR for the employees of the Seven Subcontractors. To the contrary, I accept he believed he had been appointed as Site-wide HSR. In addition, there is no suggestion that Mr Mattas did not genuinely believe that the booster assembly issue and Mr Millan’s presence posed a serious risk to the health and safety of other workers. There is also no suggestion that the directions were issued for some improper or ulterior purpose.

54    The circumstances of the s 52 contraventions were unusual. In my earlier reasons, I was critical of Broad’s inaction over the conduct of Mr Millan on 21 July 2020 and the earlier complaint of bullying behaviour that had been made against him. The conduct of Mr Mattas and Mr Blakeley can be regarded as a form of “self-help” to deal with unacceptable behaviour that Broad was unwilling to deal with. However, as I found, there were alternative lawful and legitimate forms of action that Mr Mattas and the Union could have taken to ameliorate the perceived threat to workers’ safety posed by Mr Millan.

55    In Pattinson the plurality held at [46] that an “appropriate” penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence. In oral submissions, the applicant accepted that the particular and unusual circumstances of the case lessen the need for specific and general deterrence. However, I do not accept the respondents’ submission that, “Mr Mattas’ contraventions are at the lowest end of the severity scale”.

56    The applicant accepts that this was the first occasion on which Mr Mattas contravened the BCI Act.

57    Mr Mattas has not expressed remorse for his conduct. That is not an aggravating factor, but in the absence of remorse, there remains a significant need for specific deterrence. The fact that Mr Mattas is now the holder of an entry permit under s 512 of the Fair Work Act 2009 (Cth) (the FWA) is also relevant to the need for specific deterrence of contraventions of a like kind.

58    Section 81(6) of the BCI Act requires that the nature and extent of any loss or damage suffered because of the contravention be taken into account. The applicant abandoned a claim for compensation for Broad. While it can be inferred that the stoppages of work must have caused some loss to Broad, there is no evidence as to the extent of that loss. I adopt the approach that the Court should not assume that the harm was extensive: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798 at [68].

59    It must also be kept in mind that Mr Mattas’ contraventions only involve the stoppages of work by the employees of the Seven Subcontractors and not the employees of the other eight subcontractors.

60    The applicant submits in respect of the s 46 contravention by Mr Mattas on 21 July 2020, an appropriate penalty would be in the order of $4,400. I accept that submission.

61    The applicant submits that a single civil penalty order may be made pursuant to s 84(1) for Mr Mattas’ seven contraventions of s 52. The applicant also accepts that the Court is entitled to treat the contraventions as arising out of a course of conduct in circumstances where the same direction was given, at the same project, to employees of the same subcontractors, and in response to the same perceived risk.

62    The applicant submits that, taking into account that the contraventions arose out of a course of conduct, that Mr Mattas had a genuine safety concern and the need to apply the totality principle, an appropriate penalty would be in the order of $6,700. I accept that submission.

63    I will impose a pecuniary penalty of $4,400 on Mr Mattas in respect of his contravention of s 46 of the BCI Act and $6,700 in respect of his contraventions of s 52 of the BCI Act.

Assessment of penalty for Mr Blakeley

64    Mr Blakeley committed a single contravention of s 52 of the BCI Act by making the comment, “The guys won’t return to work until the risk is removed from Site”, referring to Mr Millan. This was an illegitimate action intended to overbear the will or negate the choice of Broad as to whether to have Mr Millan work at the site.

65    Mr Blakeley’s comment must be seen in context. It was an isolated threat that was not repeated. There was no evidence connecting the threat with the industrial action that was subsequently taken. The threat was made in heated circumstances after Mr Millan had used aggressive and offensive language towards the HSRs, after Mr Blakeley had been informed that a previous complaint had been made against Mr Millan and not acted upon, and after Mr Kirkwood’s response to the incident was merely that Mr Millan was going to be sitting in the office for the rest of the day.

66    However, it must be recognised that Mr Blakeley could not have been in any position to assess the seriousness and extent of any threat posed by Mr Millan. I found that Mr Blakeley’s threat was grossly disproportionate to the concerns he held about Mr Millan’s conduct, and was illegitimate.

67    In considering what is required to deter Mr Blakeley from contravening workplace laws, regard must be had to his relevant past contravening conduct. Mr Blakeley has not been found to have previously contravened s 52 of the BCI Act, but he has contravened s 500 of the FWA on four previous occasions: see Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (South Bank Performing Arts Case Appeal) [2023] FCA 72; Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Boggo Road Cross River Rail Case) [2023] FCA 507; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FedCFamC2G 156.

68    Mr Blakeley has not expressed any remorse for his conduct.

69    The applicant submits that an appropriate penalty for Mr Blakeley is in the order of $15,500. The respondents submit that the appropriate penalty is $10,000. I accept the applicant’s submission.

70    I will impose a pecuniary penalty of $15,000 on Mr Blakeley in respect of his contravention of s 52 of the BCI Act.

Assessment of penalties for the Union

71    The Union contravened:

(a)    s 46 on 21 July 2020 in respect of the conduct of Mr Mattas;

(b)    s 46 on 27, 28, 29, 30 and 31 July and 3 and 4 August 2020 in respect of the conduct of Mr Mattas (a further seven contraventions);

(c)    s 52 on 27, 28, 29, 30 and 31 July and 3 and 4 August 2020 in respect of the conduct of Mr Mattas (seven contraventions); and

(d)    s 52 on 21 July 2020 in respect of the conduct of Mr Blakeley.

72    The applicant seeks the imposition of one penalty for the Union’s contraventions of s 46 through the conduct of Mr Mattas, another for its contraventions of s 52 through the conduct of Mr Mattas, and another for its contravention of s 52 through the conduct of Mr Blakeley.

73    The parties’ submissions contain little analysis of the penalties that ought to be imposed upon the Union.

74    The applicant submits that it is necessary to have regard to the fact that the Union is a large, well-resourced industrial organisation and an organisation of substantial size, status and influence. The applicant submits that the following penalties ought to be imposed on the Union:

(a)    for Mr Mattas’ contravention of s 46 on 21 July 2020, $22,200 (the maximum available penalty is $222,000);

(b)    for Mr Mattas’ contraventions of s 52 on 27, 28, 29, 30 and 31 July and 3 and 4 August 2020, $33,500 (maximum penalty of $1,554,000); and

(c)    for Mr Blakeley’s contravention of s 52 on 21 July 2020, $77,500 (maximum penalty of $222,000).

75    The Union accepts that it has previously contravened both ss 46 and 52 of the BCI Act, but submits that the circumstances in which Mr Mattas issued his directions and the fact that they constituted contraventions by virtue of a defect in his HSR appointment process, can be contrasted with the notion that the contraventions were part of a deliberate campaign for the Union to impose its will irrespective of the legal position.

76    In Pattinson, the plurality observed at [46];

A contravention may be a “one-off” result of inadvertence by the contravenor rather than the latest instance of the contravenor’s pursuit of a strategy of deliberate recalcitrance in order to have its way.

77    I consider that this case leans more towards the former category rather than the latter. The circumstances were unusual, stemming from the unacceptable conduct of Mr Millan and the failure of Broad to take reasonable steps to address that conduct. In addition, that the contraventions arose by reason of the defect in the appointment process removes the situation from one in which there was deliberate defiance of the law. These circumstances lessen the need for specific and general deterrence.

78    The respondents submit that the penalties imposed on the Union should be assessed as follows:

(a)    for Mr Mattas’ contravention of s 46, $10,000;

(b)    for Mr Mattas’ contraventions of s 52, $10,000; and

(c)    for Mr Blakeley’s contravention of s 52, $50,000.

79    The conduct involved in Mr Blakeley’s contravention of s 52 of the BCI Act and Mr Mattas’ contraventions of the same provision overlapped to a substantial extent. The former involved a threat that the Employees would not work while Mr Millan was on the site, while the latter involved organisation of stoppages of work by the employees of the Seven Subcontractors while Mr Millan was on the site. In my opinion, imposing the penalties sought by the applicant for the contraventions of s 52 on the Union would reflect an element of double punishment.

80    It is also necessary to take into account that the Union’s contraventions of s 46 through the conduct of Mr Mattas were limited to industrial action taken by the employees of four of the Seven Subcontractors and that its contraventions of s 52 through the conduct of Mr Mattas must be regarded as limited in the same way.

81    I assess the penalties appropriate to be imposed on the Union as follows:

(a)    for Mr Mattas’ contravention of s 46 on 21 July 2020, $25,000;

(b)    for Mr Mattas’ contraventions of s 52 on 27, 28, 29, 30 and 31 July and 3 and 4 August 2020, $40,000; and

(c)    for Mr Blakeley’s contravention of s 52 on 21 July 2020, $40,000.

Summary

82    I will make declarations substantially in the form sought by the applicant.

83    A pecuniary penalty of $4,400 will be imposed on Mr Mattas in respect of his contravention of s 46 of the BCI Act and $6,700 in respect of his contraventions of s 52 of the BCI Act.

84    A pecuniary penalty of $10,000 will be imposed on Mr Blakeley in respect of his contravention of s 52 of the BCI Act.

85    Pecuniary penalties of $25,000 will be imposed on the Union for Mr Mattas’ contravention of s 46 on 21 July 2020; $40,000 for Mr Mattas’ contraventions of s 52 on 27, 28, 29, 30 and 31 July and 3 and 4 August 2020; and $40,000 for Mr Blakeley’s contravention of s 52 on 21 July 2020.

86    The parties agreed that each party should bear their own costs. I will make no order as to the costs of the proceeding.

Associate:    

Dated:    18 October 2024