FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Ironside Case) [2025] FCA 1664

ORDERS

THE COURT DECLARES THAT:

1.    Mr James Simpson contravened:

(a)    s 500 of the Fair Work Act 2009 (Cth) on 17 March 2021 at a construction project, being three apartment buildings located at 1 Mills Boulevard, Alphington (the Artisan East Site), by acting in an improper manner whilst exercising rights in accordance with Pt 3-4 of the Act by turning off the generator that provided power to the site without authorisation or warning to any of the workers on site;

(b)    s 499 of the Act on 15 April 2021 at a construction project, being a multistorey residential apartment building with retail at Mount Dandenong Road, Croydon (the Orphic Site), by exercising a State or Territory OHS right whilst failing to comply with a reasonable request to leave the construction zone, being an occupational health and safety requirement that applied to the Orphic Site; and

(c)    s 500 of the Act on 15 April 2021 at the Orphic Site by acting in an improper manner whilst exercising rights in accordance with Pt 3-4 of the Act by contravening s 499 of the Act and engaging in the conduct that constituted the contravention of s 499.

2.    Mr James Harris contravened:

(a)    s 499 of the Act on 14 April 2021 at the Orphic Site by exercising a State or Territory OHS right whilst failing to comply with a request to leave the construction zone located along Mt Dandenong Road, being an occupational health and safety requirement that applied to the Orphic Site; and

(b)    s 500 of the Act on 14 April 2021 at the Orphic Site by acting in an improper manner whilst exercising rights in accordance with Pt 3-4 of the Act by remaining in the construction zone despite requests by the occupier of the site to leave, and by contravening s 499 of the Act and engaging in the conduct that constitute the contravention of s 499.

3.    Mr Jaxson Mahy contravened s 500 of the Act on 4 May 2021 at the Orphic Site by acting in an improper manner whilst exercising rights in accordance with Pt 3-4 of the Act by accessing and taking photos of the computer screen of Orphic Site Manager, Mr Joshua Schmitz, without permission.

4.    Mr Paul Tzimas contravened:

(a)    s 499 of the Act on 15 April 2021 at the Orphic Site by exercising a State or Territory OHS right whilst failing to comply with a request to leave the construction zone, being an occupational health and safety requirement that applied to the Orphic Site;

(b)    s 500 of the Act on 15 April 2021 at the Orphic Site by acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the Act by contravening s 499 of the Act, and engaging in the conduct that constituted the contravention of s 499; and

(c)    s 500 of the Act on 15 April 2021 at the Orphic Site by acting in an improper manner whilst exercising rights in accordance with Pt 3-4 of the Act by causing an excavator to stop work.

5.    The Construction, Forestry and Maritime Employees Union contravened ss 499 and 500 of the Act by reason of being directly or indirectly, knowingly concerned in or party to the conduct of its officials as referred to in declarations 1 to 4 above, and therefore involved in those contraventions (for the purposes of s 550(2)(c) of the Act) and is thereby itself taken to have contravened ss 499 and 500 of the Act on each of those occasions (pursuant to s 550(1) of the Act).

THE COURT ORDERS THAT:

1.    The Construction, Forestry and Maritime Employees Union pay the following penalties in respect of the following contraventions:

2.    Mr James Simpson pay the following penalties in respect of the following contraventions:

3.    Mr James Harris pay the following penalties in respect of the following contraventions:

4.    Mr Jaxson Mahy pay the following penalties in respect of the following contraventions:

5.    Mr Paul Tzimas pay the following penalties in respect of the following contraventions:

6.    The applicant serve these orders on the respondents in accordance with rr 10.01 and 10.04 of the Federal Court Rules 2011 (Cth).

7.    The pecuniary penalties referred to in Orders 1 to 5 be paid to the Commonwealth of Australia within 28 days.

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

REASONS FOR JUDGMENT

DOWLING J

1    Ironside Construction Pty Ltd is a construction company that in 2021 was the head contractor and occupier of a number of residential apartment developments in the suburbs of Melbourne. Between March and May of 2021, officials of the Construction, Forestry and Maritime Employees Union visited two of those developments, raised complaints about safety, and engaged in conduct that the parties agree was in contravention of the Fair Work Act 2009 (Cth).

2    The applicant, the Fair Work Ombudsman, alleges, and the respondents admit, the following conduct and contraventions:

(1)    On 17 March 2021 Union official Mr James Simpson contravened s 500 of the Act by acting in an improper manner at the Ironside site on Mills Boulevard, Alphington (the Artisan East Site) by turning off the generator that provided power at the site without authorisation or warning to any of the workers on site.

(2)    On 14 April 2021 Union official Mr James Harris contravened ss 499 and 500 of the Act by failing to comply with a reasonable request of Ironside to comply with an occupational health and safety (OHS) requirement to leave a construction zone, and by remaining in that zone, at the Ironside site on Mount Dandenong Road, Croydon (the Orphic Site).

(3)    On 15 April 2021 Mr Simpson contravened ss 499 and 500 of the Act by failing to comply with a reasonable request of Ironside to comply with an OHS requirement to leave a construction zone at the Orphic Site.

(4)    On 15 April 2021 Union official Mr Paul Tzimas contravened ss 499 and 500 of the Act by failing to comply with a reasonable request of Ironside to comply with an OHS requirement to leave a construction zone, and contravened s 500 again by causing an excavator to stop work at the Orphic Site.

(5)    On 4 May 2021 Union official Mr Jaxson Mahy contravened s 500 of the Act by acting in an improper manner by accessing and taking photos of an Ironside employee’s computer screen without permission at the Orphic Site.

3    The circumstances of those contraventions are explained in greater detail below.

4    The applicant also alleges, and the respondents admit, that the Union was knowingly concerned in the above contraventions, and is therefore liable as an accessory to those contraventions pursuant to s 550 of the Act.

5    For the reasons that follow, I am satisfied that it is appropriate to make declarations and impose penalties in respect of the above contraventions by the above individual respondents and the Union.

LEGISLATIVE PROVISIONS AND PRINCIPLES

6    As identified above, the individual respondents admit six contraventions of s 500 of the Act, and three contraventions of s 499 of the Act.

7    Section 499 of the Act provides:

499 Occupational health and safety requirements

A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

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

Note 2:     The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

8    Section 500 of the Act provides:

500 Permit holder must not hinder or obstruct

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

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

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

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

9    “Permit holder” is defined in s 12 of the Act to mean a person who holds an entry permit. It is common ground between the parties that Mr Simpson, Mr Harris, Mr Mahy and Mr Tzimas were permit holders at all relevant times and that they were exercising rights in accordance with Pt 3-4 of the Act.

10    The Union admits that it was directly or indirectly “knowingly concerned” in the contraventions by the individual respondents for the purposes of s 550(2)(c) of the Act, and is therefore involved in those contraventions and taken to have contravened ss 499 and 500 on each of those occasions. Section 550 relevantly provides:

550 Involvement in contravention treated in same way as actual contravention

(1)     A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

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

(2)     A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) …

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

11    The Union also admits that, for the purposes of s 793 of the Act, each of Messrs Simpson, Harris, Tzimas and Mahy were “officers” and that they were acting in their capacity and within the scope of their authority as officers of the Union. Section 793 relevantly provides:

793  Liability of bodies corporate

Conduct of a body corporate

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

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

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

is taken, for the purposes of this Act (subject to subsection (3A)) 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 (subject to subsection (3A)) 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.

12    A number of relevant principles emerge from the authorities considering ss 499, 500, and 550, as follows:

(a)    The reasonableness of a request under s 499 will depend on all the circumstances of the particular case. A request, even made aggressively, may remain a reasonable request: Darlaston v Parker [2010] FCA 771; 189 FCR 1 at [143] (Flick J).

(b)    For s 500, it is not necessary to prove intent in relation to a person who acts in an improper manner. Rather, s 500 requires an objective assessment or determination of whether there was conduct or action of an improper manner: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106] (Mansfield J). The words “or otherwise acting in an improper manner” are not limited by the phrase “obstruct or hindering”: Gregor v Setka [2010] FMCA 690; 242 FLR 430 at [70]–[89] (Burchardt FM). Impropriety consists of “a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case”: R v Byrnes (1995) 183 CLR 501 at 514–515 (Brennan, Deane, Toohey and Gaudron JJ).

(c)    For s 550, to be “knowingly concerned in” or party to the contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Australian Building and Construction Commissioner v Huddy [2017] FCA 739 at [445] (White J) and the cases there cited. The person must have knowledge of the essential elements of the contravention: Yorke v Lucas (1983) 80 FLR 143 at 147, 150–1 (Bowen CJ, Lockhart and Beaumont JJ); Yorke v Lucas (1985) 158 CLR 661 at 670 (Mason ACJ, Wilson, Deane and Dawson JJ), cited in Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 3) [2023] FCA 201 at [252] (Katzmann J).

ADMITTED FACTS AND CONTRAVENTIONS

13    The respondents admit and agree certain facts and contraventions alleged in the Amended Statement of Claim. They make those admissions by way of an Amended Defence dated 19 February 2024. I find the admitted facts established. They are relevantly as follows.

Mr Simpson on 17 March 2021 at the Artisan East Site

14    At around 9.00 am on 17 March 2021, Mr Simpson and four other Union organisers entered the Artisan East Site. After entering, Mr Simpson issued a Notice of Suspected Contravention (NOSC) under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) to Mr Scott Savage, Site Manager, which referred to first aid/amenities and electrical wiring. Mr Paolo Giumarra, another Union organiser, issued a separate NOSC to Mr Savage which referred to plant service and maintenance.

15    While at the Artisan East Site, Mr Simpson and Mr Giumarra spoke to Mr Savage and requested that the generator in the amenities area be turned off. They gave as a reason that the generator had exceeded the number of hours after which it was required to be serviced. Mr Savage told Mr Simpson and Mr Giumarra that a service had already been booked for the generator for later that day. Mr Simpson and Mr Giumarra asked Mr Savage what the procedures would be in the event that the generator was to fail. In response, Mr Savage performed a controlled shutdown of the generator in order to demonstrate that it was safe.

16    After the controlled shutdown, Mr Simpson and Mr Giumarra continued to ask Mr Savage what was going to be done about the generator, and alleged that it was unsafe for it to continue running. Mr Savage responded that the generator was not causing any imminent danger.

17    Later that day, at about 12.00 pm, Mr Simpson went into Mr Savage’s office on the Artisan East Site. Mr Simpson said words to the effect of: “Scott, what are we doing about the generator” and “it needs to be turned off”. Mr Savage replied with words to the effect of: “nothing, it’s booked in for a service and I’ve proved to you that it’s in good working order.” Mr Simpson did not respond and walked away.

18    Shortly after 12.00 pm, Mr Simpson returned to the amenities area and said words to the effect of “sod this” and “I’ll just do it” then walked towards the generator and turned it off. As a result of Mr Simpson turning off the generator, power to the entire Artisan East Site was shut off without notice to workers at the site. This caused the following safety hazards:

(1)    the Vanguard Evacuation System (which is used to notify workers on site to evacuate to the emergency muster point) was turned off;

(2)    lifts could not be operated, which could have hindered the evacuation of the workers who were performing work in elevator shafts/lift wells at that time; and

(3)    workers who were using power tools such as grinders had the power to their tools suddenly shut off without notice.

19    As a result of Mr Simpson turning off the generator, at about 1.41 pm all workers (about 80 to 100 individuals) were evacuated from the Artisan East Site.

20    The parties agree that Mr Simpson acted in an improper manner and so contravened s 500 of the Act by virtue of the above.

Mr Harris on 14 April 2021 at the Orphic Site

21    On 14 April 2021, the Orphic Site had a construction zone which was located on the opposite side of a “no go” zone. At the construction zone on 14 and 15 April 2021, bulk excavation works were being carried out. The “no go” zone served as a laneway for haul trucks to drive through that provided a truck path around the Orphic Site leading up to a gate where trucks would exit. The site amenities building was next to the “no go” zone.

22    At about 8.46 am on 14 April 2021, Mr Harris and Mr Mahy entered the Orphic Site. Whilst at the site, Mr Harris and Mr Mahy each issued a NOSC to Mr Joshua Schmitz, Site Manager, which referred to traffic management and inductions for truck drivers. Mr Harris, Mr Mahy, Mr Schmitz and Mr Jeffery Anderson, Ironside’s Health and Safety Coordinator, were outside the site amenities building next to the “no go” zone whilst excavators operated in the construction zone. Mr Schmitz told Mr Harris and Mr Mahy not to proceed into the construction zone, yet Mr Harris walked across the “no go” zone and into the construction zone. Mr Schmitz then requested Mr Harris to leave the construction zone. Mr Harris refused.

23    While work was still going on, Mr Schmitz then walked towards Mr Harris to re-erect a crowd barrier with signage saying “Danger – Do Not Enter” and “Entry by Authorized Personnel Only” across the entry to a pedestrian bridge which led further into the construction zone. Rather than coming out of the construction zone, Mr Harris proceeded to walk even further, walking onto the pedestrian bridge. Mr Anderson repeatedly asked Mr Harris to leave the construction zone, but Mr Harris refused to do so. The parties agree, and I accept, that in the circumstances the request made by Mr Schmitz and Mr Anderson to Mr Harris, which related to occupational health and safety requirements, was reasonable.

24    The parties agree that, by engaging in this conduct and refusing to comply with the reasonable request, Mr Harris acted in an improper manner and contravened ss 499 and 500 of the Act.

Messrs Simpson and Tzimas on 15 April 2021 at the Orphic Site

25    On 15 April 2021 between 7.16 am and 7.46 am, Mr Tzimas and Mr Simpson entered the Orphic Site. At the site Mr Tzimas issued NOSCs which referred to, amongst other things, safe systems of work and safety data sheets, and Mr Simpson issued NOSCs which referred to, amongst other things, temporary access stairs.

26    While at the site, Mr Schmitz escorted Mr Simpson and Mr Tzimas to the pedestrian bridge within the construction zone to discuss the design of the stairs and bridge. Mr Anderson was apparently in or near the construction zone around this time. Mr Schmitz asked Mr Simpson and Mr Tzimas to “go back to site”, saying he had “closed out the contraventions”. While Mr Tzimas followed Mr Schmitz out of the construction zone, Mr Simpson remained inside and walked further into the construction zone without an escort whilst an excavator was operating nearby. Mr Schmitz said to Mr Simpson words to the effect of, “we’re not going down there. It’s part of an exclusion zone”. Mr Anderson then made multiple requests that Mr Simpson leave the construction zone. Mr Simpson refused to comply.

27    Additionally, at some time on 15 April 2021, Mr Tzimas entered a “no go” zone despite requests from Mr Anderson to leave the zone. After ignoring the requests of Mr Anderson, Mr Tzimas continued walking and entered the construction zone, walking past a sign which read “Danger – Construction Site – Unauthorised Personnel Keep Out”. Mr Anderson continued to request that Mr Tzimas leave the construction zone, but Mr Tzimas continued to ignore those requests and instead walked into the slew zone (meaning the circular area in which an excavator can rotate or slew) of an operating excavator.

28    Mr Tzimas approached the driver of the excavator and asked him to get out of the excavator cab so that Mr Tzimas could see documentation inside the excavator. Upon observing these events, Mr Anderson urged Mr Tzimas to come back, saying “you can’t stop the operator from operating”. As a result of Mr Tzimas’s interaction with the excavator driver, the driver stepped out of the machine and work stopped.

29    The parties agree, and I accept, that in the circumstances the requests made to Mr Simpson and Mr Tzimas, which related to occupational health and safety requirements, were reasonable.

30    The parties agree that by engaging in this conduct and refusing to comply with those reasonable requests, Mr Simpson and Mr Tzimas acted in an improper manner and contravened ss 499 and 500 of the Act.

Mr Mahy on 4 May 2021 at the Orphic Site

31    On 4 May 2021 at approximately 7.30 am, Mr Mahy and Mr Harris entered the Orphic Site. At the site, Mr Mahy and Mr Harris issued NOSCs to Mr Schmitz which referred, amongst other things, to unloading of delivery trucks and systems of work related to crane operations.

32    In the afternoon, Mr Mahy and Mr Harris were left in the site office alone for five minutes while Mr Schmitz attended to something else on the site. During this time, Mr Mahy accessed Mr Schmitz’s computer without authorisation or permission, which contained sensitive information of Ironside. Mr Mahy took a photo of the computer screen that had an email from Mr Antoine Bachet, Ironside’s Health Safety Environment and Quality Manager, to Ironside employees relating to the Union presence on Ironside’s sites. Mr Mahy showed that photo to Mr Harris.

33    The parties agree that by engaging in that conduct, Mr Mahy acted improperly and contravened s 500 of the Act.

Conclusion on admitted facts and contraventions

34    I am satisfied that the above facts, admitted by the respondents’ Amended Defence, establish the contraventions agreed by the parties.

PENALTY PRINCIPLES

35    The Court’s power to impose an appropriate penalty in respect of a contravention of a civil remedy provision is conferred by s 546(1) of the Act.

36    There were no meaningful differences between the parties’ positions on the applicable principles regarding the imposition of penalties. Those principles are uncontroversial, and may be summarised as follows:

(a)    Section 546 of the Act enables the court to impose an appropriate penalty in respect of a contravention of a civil remedy provision. “Appropriate” in this context means that the penalty should be one that secures the protection of the public interest by the means of effective deterrence, and the same considerations may justify as appropriate the imposition of the maximum penalty possible in a given case: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 at [50] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

(b)    Section 546 confers a discretion that is to be exercised judicially, that is, fairly and reasonably having regard to the subject matter, scope, and purpose of the legislation: see Pattinson at [40] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

(c)    Civil penalties are imposed primarily, if not solely, for the purpose of deterrence: see Pattinson at [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). That is, the purpose of the penalty is to promote the public interest in compliance with legal obligations and to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravenor and by others who are in a position to contravene legislation: see Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (the Agreed Penalties Case) at [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).

(d)    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 contravenor and others: Pattinson at [9] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson J). Contraventions of a “like kind” in the context of the Act are not contraventions of industrial law generally. What amounts to contraventions of a “like kind” hinges on the circumstances of the case, including the nature of the conduct comprising the contravention, the provision contravened, and the circumstances of the contravenor, including whether the contravening conduct is part of an unlawful industrial strategy or plan and whether the contravention involved senior management: Pattinson at [18], [47] and [54] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72; 322 IR 233 (the Lendlease Meeting Case) at [104] (Rangiah J).

(e)    Whilst the Court’s task is to determine what an appropriate penalty is, the authorities have identified a non-exhaustive list of factors which inform the assessment of a penalty of appropriate deterrent value. However, these factors should not be approached as a rigid catalogue or “legal checklist”: Pattinson at [18]–[19] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), citing French J in Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076 at 52, 152–3. The factors set out by French J were:

(i)    the nature and extent of the contravening conduct;

(ii)    the amount of loss or damage caused;

(iii)    the circumstances in which the conduct took place;

(iv)    the size and power of the contravenor;

(v)    the deliberateness of the contravention and the period over which it extended;

(vi)    whether the contravention arose out of the conduct of senior management;

(vii)    whether the contravenor has a culture conducive to compliance, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and

(viii)    whether the contravenor has shown a disposition to co-operate with the authorities responsible for the enforcement in relation to the contravention.

(f)    Whilst the imposition of the penalty is at large, there should be some “reasonable relationship between the theoretical maximum and the final penalty imposed”: Pattinson at [55] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), citing Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [156] (Jagot, Yates and Bromwich JJ). The reasonable relationship should be considered by reference to the need for deterrence: Pattinson at [55].

37    Section 556 of the Act provides that a person required to pay a pecuniary penalty under a civil remedy provision of the Act in relation to particular conduct, cannot be required also to pay a pecuniary penalty under some other provision of a law of the Commonwealth for the same particular conduct: see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; 272 FCR 290 at [16] (Bromberg, Wheelahan and Snaden JJ). The applicant accepts in the present circumstances that a penalty cannot be imposed for contraventions of both ss 499 and 500 of the Act where each contravention arose from the same conduct. The applicant seeks penalties for the contraventions of s 499 in these circumstances, and does not seek penalties for the following contraventions of s 500 arising out of the same conduct.

38    I consider the approach taken by the applicant, where it elects to pursue just one particular contravention in relation to the same particular conduct, in light of the operation of s 556 of the Act, to be a suitable approach. That approach aligns with that set out in Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781 at [14] (Wheelahan J). There, Wheelahan J considered that in circumstances where s 556 applies, it is appropriate for the applicant to treat one contravention as the “lead contravention” in respect of which penalties should be imposed.

CONSIDERATIONS ON PENALTY

Circumstances of the contravention

39    I first consider the circumstances of the contraventions, including the nature and gravity of those contraventions.

Mr Simpson on 17 March 2021 at the Artisan East Site

40    The applicant submits that Mr Simpson’s contravening conduct on 17 March 2021 was serious, having the effect of turning off all the power to the construction site, including the site’s evacuation system used to notify workers of an emergency. Additionally, the applicant says that Mr Simpson’s conduct was intentional as evidenced by his repeated request to Mr Savage that the generator be turned off before saying “I’ll just do it”. The applicant submits further that while Mr Simpson’s conduct was not arbitrary or capricious, that in itself does not entitle Mr Simpson to a discount in penalty.

41    The respondents submit that Mr Simpson’s conduct was imprudent, inappropriate, and intentional insofar as it involved an intentional act. However, the respondents say that Mr Simpson did not deliberately set out to break the law, and his conduct was motivated by a view that it was unsafe for the generator to continue operating inconsistent with the manufacturer’s specifications. Further, the respondents submit that Mr Simpson did not know that the generator powered the whole site, and when Mr Simpson enquired with the relevant manager about turning the generator back on, Mr Savage elected not to do so.

42    In considering Mr Simpson’s conduct, I take into account the applicant’s acceptance that Mr Simpson had a legitimate concern about the safety of the generator. I accept that is at least relevant to the level of seriousness of the contraventions. I also take into account that, as the respondents submit, Mr Simpson did not appreciate that by turning off the generator the evacuation system would be turned off, the lifts could not operate, and the workers using power tools would have their tools cut off without notice. I also take into account that, as the applicant submits, Mr Simpson made no attempt to have employees warned that the generator was going to be turned off.

43    The applicant submits that although Mr Simpson deposes that he thought there was a serious and imminent threat to safety in relation to the generator, there is no plausible basis for that apparent belief and it ignores the reality that Mr Simpson’s actions had the obvious potential to cause serious risk to safety. It says further that though Mr Simpson deposes that he did not know the generator powered the whole site, this belief does not stand to reason where moments earlier Mr Savage had performed a controlled shutdown of the generator for Mr Simpson’s benefit. The respondents submit that the evidence of each of the individual respondents in respect of their states of mind at the time of the contravening should be accepted by the Court. They say that to the extent that the applicant challenges that evidence by describing it as irrational or not standing to reason, that should not be accepted in circumstances where none of the individual respondents were cross-examined about their beliefs or the bases for them.

44    I consider that it is open to the applicant to make submissions as to the objective reasonableness of the beliefs held by the respondents. The applicant accepts that the individual respondents held the deposed subjective beliefs. However, the applicant effectively submits that it was not reasonable to hold that belief. I consider it proper to take into consideration both of those submissions: the unchallenged subjective beliefs of the individual respondents, and the objective reasonableness of those beliefs.

45    I find that Mr Simpson’s conduct on 17 March 2021 at the Artisan East Site was serious. It was deliberate and carried a risk of harm to those at the Artisan East Site, resulting in the workers’ power being cut off without notice. While Mr Simpson says he was unaware of all of the consequences of his actions, he did not enquire about those consequences or warn employees about his intentions.

Mr Harris on 14 April 2021 at the Orphic Site

46    The applicant submits that the contravening conduct of Mr Harris at the Orphic Site demonstrates a disregard of Ironside’s authority to control safety matters on its site. Additionally, the applicant says that the requests made by Mr Anderson and Mr Schmitz to Mr Harris to not enter and then to leave the construction zone were reasonable, given the dangerous nature of the construction work taking place at the Orphic Site at the time, and those requests were directed towards protecting Mr Harris.

47    The respondents say that Mr Harris’s conduct was not objectively serious and was at the low end of the scale of gravity. They rely on the fact that Mr Harris’s conduct: was solely his, without any involvement of a senior official, officer, or employee of the Union; occurred while he was otherwise lawfully exercising rights whilst on the site; did not cause economic loss or have any appreciable adverse impact on anyone; was isolated and temporarily confined; was not premeditated or planned; did not cause any risk of harm to any person; and was based on a genuine belief that he was entitled to be in the area.

48    The applicant accepts that there were no signs or “other things” which identified that the area was a construction zone that he was excluded from entering. The only indicators were the requests made by Mr Schmitz and Mr Anderson directed towards Mr Harris not to enter the construction zone, and later, to leave the construction zone.

49    The applicant challenged the respondents’ contention that there was no risk of harm by Mr Harris’s conduct. While no harm occurred, it maintains that there was a risk. On the date that Mr Harris entered the construction zone, bulk excavation works were being carried out and excavators were operating in that zone.

50    The applicant further submits that Mr Harris, as an experienced construction union official, should have known better than to enter an area where excavators were operating, and that it would have been obvious to a reasonable person that it was an OHS requirement not to enter that zone.

51    The respondents took issue with the applicant’s apparent challenge to Mr Harris’s evidence in circumstances where it was not put to Mr Harris that he was acting or thinking unreasonably or irrationally. As I stated at [43]-[44], I consider it proper to take into consideration both Mr Harris’s evidence as to his subjective belief he did not think he was prevented from entering the construction zone, and the applicant’s submission as to whether Mr Harris should reasonably have known that he could not be in that area.

52    In all the circumstances I find that Mr Harris’s conduct on 14 April 2021 at the Orphic Site was serious. It was deliberate and ignored direct requests to leave the construction zone. It created at least a risk of harm where works were being carried out in the construction zone at the time.

Mr Simpson and Mr Tzimas on 15 April 2021 at the Orphic Site

53    The applicant says that the conduct of both Mr Simpson and Mr Tzimas demonstrates a disregard of Ironside’s authority to control safety matters at the site. It submits that the requests made by Mr Schmitz and Mr Anderson to Mr Simpson and Mr Tzimas to leave the construction zone were reasonable, and were made to protect Mr Simpson and Mr Tzimas. It submits that both incidents carried with them a risk of harm.

Mr Simpson

54    The respondents say that Mr Simpson’s conduct was on the lower end of the spectrum of objective gravity, having regard to the fact that the contravening conduct: was solely his own, there being no involvement of any senior Union official, did not cause economic loss or have an appreciable adverse impact on anyone, was not premeditated or preplanned, was isolated, did not cause any risk of harm to any person, and was premised by Mr Simpson’s genuine belief that he was able to be in the area from which he was asked to leave.

55    The applicant accepts that the area within the construction zone that Mr Simpson entered was not barricaded off. However, Mr Simpson was informed by Mr Schmitz that the area was “part of an exclusion zone”, and Mr Simpson admits that the request to leave the construction zone was reasonable. The applicant also challenged the respondents’ assertion that the incident did not cause any risk of harm. The applicant submitted that, while no harm was caused, there was still a risk of harm.

56    Again, in all the circumstances, I find that Mr Simpson’s conduct on 15 April 2021 at the Orphic Site was serious. It was deliberate. It ignored a direct request to leave the zone. It created at least a risk of harm where an excavator was operating nearby.

Mr Tzimas

57    Unlike Mr Simpson, Mr Tzimas walked past a sign that read “Danger – Construction Site – Unauthorised Personnel Keep Out”. Mr Tzimas deposed, however, that as he approached the excavator, he was not aware of any signage or other marking of an exclusion zone.

58    The respondents say that Mr Tzimas’s conduct falls below the middle of the range of objective seriousness, taking into account that his conduct: was his own and did not involve other officials, officers or agents of the Union, caused work to temporarily stop but did not cause economic loss, did not have any appreciable adverse impact on anyone, was not premeditated or planned, and was isolated, did not cause any risk of harm to any person, and was based on an erroneous belief that the conduct was not prohibited. They say further that Mr Tzimas was otherwise lawfully exercising rights whilst on site.

59    The applicant submits that Mr Tzimas’s actions did carry a risk of harm by the very nature of Mr Tzimas contravening OHS requirements. The risk also applied to Mr Tzimas himself, and to the people operating the machinery. The applicant also says that given Mr Tzimas had been an organiser at the Union since 2017, he should have been more cognisant of the limits of his powers and permissions on worksites.

60    Again, the respondents took issue with what they described as an “implied criticism and attack on Mr Tzimas’s evidence without cross-examining him”. As I have stated at [43]-[44] and [50]-[51], I have considered both Mr Tzimas’s unchallenged subjective beliefs as to the lawfulness of his actions, and the applicant’s submission as to the objective reasonableness of those beliefs.

61    I find that Mr Tzimas’s conduct on 15 April 2021 at the Orphic Site was serious. Again, it was a deliberate act. It ignored signage identifying the zone and the danger, although I note Mr Tzimas’s unchallenged evidence that he was not aware of the signage. It ignored a direct request to leave the zone. It created at least a risk of harm. It involved walking within the slew zone of an excavator that was operating.

Mr Mahy on 4 May 2021 at the Orphic Site

62    The applicant submits that Mr Mahy’s contravening conduct on 4 May 2021 was serious. Having entered the site for safety concerns, he accessed sensitive information from Ironside and took a photo of communications from Mr Bachet to other Ironside employees without permission. His conduct was unrelated to the powers he was there to exercise, and no justification for his conduct was pleaded in this matter.

63    The respondents accept that Mr Mahy’s conduct was impulsive, injudicious, and fell below the standard of propriety expected of permit holders. However, they also say that Mr Mahy’s conduct falls towards the lower end of the spectrum of objective seriousness for contraventions of s 500 of the Act because the conduct: was his own; occurred in circumstances where Mr Mahy was otherwise lawfully exercising rights whilst on site, did not occasion economic loss nor have any appreciable adverse impact on or risk harm to any person, and was not premeditated or planned but was a spur of the moment decision which was isolated.

64    The applicant disputes the submission that Mr Mahy’s conduct did not have an appreciable adverse impact on anyone and says that the conduct was a significant breach of Mr Schmitz’s privacy.

65    I find that Mr Mahy’s conduct on 4 May 2021 was serious. The conduct was deliberate and was unrelated to and unnecessary for the powers he intended to exercise. It was, as he accepts, below the standard of proper behaviour expected of permit holders.

Corrective Action

66    Each of the individual respondents undertook training with Mr Brian Lacy AO, both before and after they engaged in their contravening conduct. Mr Lacy is a respected barrister with considerable experience in employment and industrial law. He is a former Senior Deputy President of the Australian Industrial Relations Commission.

67    Mr Lacy provided the training to the individual respondents on 17 April 2024 (the April 2024 training) following proceedings commencing against the Union and individual respondents in this matter. The respondents submit that that training was directed to the circumstances of the contraventions and the powers and responsibilities of permit holders exercising State and Territory OHS rights under the OHS Act. The letter of instructions to Mr Lacy attached the amended pleadings and directed Mr Lacy’s attention to the specific conduct of each of the individual respondents. The letter sought training on the individual respondents’ powers under the OHS Act, the prohibitions under ss 499 and 500 of the Act, why their conduct amounted to contraventions of the Act, and what steps they needed to take to comply with the Act and the OHS Act.

68    Mr Lacy provided a report detailing that training. The report explained that the individual respondents engaged in the training with alacrity, participated positively in the discussions about the legislation and the case studies, and each expressed appreciation for the opportunity to have the training. The report concluded:

Each [individual respondent] confirmed he is committed to complying with the responsibilities and obligations of a person holding a permit under the OHS Act. Based on the training provided to the Organisers, their positive participation in the training and express commitment to comply with the legislation hereunder consideration, I am of the opinion each intends to use his best endeavours to comply with work and health and safety legislation …

69    Mr Lacy had previously provided training to each of the individual respondents. On 15 March 2021 he provided group training to the Union’s organisers, including the individual respondents. The focus of that training was the responsibilities and obligations of Union officials under workplace laws. Further, each of Mr Simpson, Mr Harris, and Mr Tzimas had previously attended one-on-one training with Mr Lacy. Those training sessions took place following the finding or admission of previous contraventions of the Act by each of those individuals. Mr Simpson attended that training on 18 January 2021, Mr Harris on 14 February 2024, and Mr Tzimas on 6 October 2020 and 20 August 2021.

70    The respondents submit that as the result of the remedial April 2024 training, alongside the expressions of contrition and acceptance of responsibility by the individual respondents for their contravening, and their expressed commitment to complying with their obligations, the imperative for specific deterrence is markedly reduced. They say this should be reflected in a significant attenuation of penalty.

71    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101 at [59], Snaden J reached the following conclusion on training provided by Mr Lacy:

It reflects an acknowledgment, on the respondents’ part, of wrongdoing—of a problem requiring corrective action. It weighs against other considerations (most obviously, the union’s poor history of statutory contravention), which, in the balance, inform the deterrent effect that the court must strive to achieve through the imposition of penalties in this case.

72    The applicant welcomes the remedial April 2024 training and accepts it “has some mitigatory effect” but submits that, in the circumstances, it should not result in a significant attenuation of penalty. The applicant relies on the observations of Katzmann J in Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) (No 3) [2023] FCA 1324 where (at [23]) her Honour stated:

I do not consider the use of Mr Lacy to provide training and instruction after a contravention to be evidence of a system to ensure compliance. Mr Lacy appears to be engaged on an ad hoc basis after contraventions have been found in order to reduce the quantum of penalties. If the Union were serious about eliminating or reducing the risk of contravening conduct, it would have rolled out an education program to all union officials across the country upon their engagement and at regular intervals thereafter…

73    Mr Irving, the administrator of the Union, deposed that he would take a number of steps in relation to ensuring permit holders exercise right of entry powers according to law. This included reviewing existing training arrangements, policies and guides available and directions and advice given to permit holders to ensure the lawful exercise of a right of entry. He deposed that he would implement changes as necessary following his review. I take into account those aims and intentions of Mr Irving. However, the changes as a result of that review are unknown.

74    I consider that, as the applicant submits, the April 2024 training is to be welcomed. However, that training must be assessed in light of the earlier training provided by Mr Lacy. Most of the training has been in response to an admission or contravention. That earlier training (in 2020 and 2021) did not prevent the present contraventions of Messrs Simpson and Tzimas. The group training held on 15 March 2021 also did not prevent the contravening conduct of the individual respondents. However, it is not possible to assess its impact more broadly across the Union. I am satisfied that the April 2024 training, together with the conclusions of Mr Lacy’s report discussed at [68] above and the contrition and commitment of the individual respondents, deserves some reduction in penalty and results in some attenuation of the need for specific deterrence. I am not satisfied however, in all the circumstances of this case, that it leads to a significant attenuation of penalty.

Contrition

75    In Pattinson at [47], Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ stated:

[W]here those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court. …

76    The respondents submit that these remarks are germane to the present case where the individual respondents have expressed genuine contrition.

77    Each of the individual respondents deposed that their contravening conduct was wrong, they regret their conduct, they accept full responsibility for their conduct, and they are committed to ensuring they do not repeat their conduct.

78    The applicant accepts that the individual respondents depose to their contrition in this way. However, the applicant says that this must be considered alongside Mr Lacy’s evidence which indicates that while the individual respondents received training in the past, Mr Simpson engaged in contravening conduct on 17 March 2021, two days after receiving the group training from Mr Lacy. The applicant relies on this to submit that what is deposed to in the affidavits of the individual respondents might not be indicative of their likely future actions.

79    Further, the applicant submits that Mr Harris’s explanation in his affidavit of the events of 14 April 2021 do not “cover him in glory”. The applicant submits that while Mr Harris acknowledges that he should not have taken the action, he also seeks to minimise the effect of his actions by drawing attention to the fact that he did not see any signage suggesting that the area was an exclusion zone which he could not enter. The applicant says this diminishes Mr Harris’s contrition.

80    I accept the expression of contrition of each of the individual respondents. It is contained in their unchallenged affidavits. I weigh that contrition together with the prior contraventions of Mr Simpson, Mr Harris, and Mr Tzimas.

Cooperation

81    I take into account the cooperation of the respondents in this proceeding as a matter attenuating penalty. These proceedings resolved following negotiations and before the trial commenced. That resolution meant that significant aspects of the applicant’s case were withdrawn, and the respondents admitted to the remaining contraventions still pressed.

82    The applicant accepts that the Court can take into account the admissions made by the respondents as a mitigating factor in assessing penalty. However, the applicant submits that only a modest discount should be applied to the proposed penalty range.

83    The respondents submit that a discount of 10-15% should apply in respect of their cooperation, following the approach taken by Bromwich J in Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2024] FCA 576; 331 IR 106 at [58] where his Honour considered that an admission of liability after the defence has been filed but before the proceeding is listed for trial attracts a 15% discount to the quantum of penalty that would otherwise have been appropriate; while an admission of liability after the proceeding has been listed for trial but before the trial commences attracts a 10% discount. The respondents submit that they fall “somewhere between” those two points, having made the admission of liability after the matter was listed for trial but where evidence and submissions in respect of the liability hearing had not been filed.

84    Whilst I am cognisant of Bromwich J’s indication in 85 Degrees Coffee at [57] that the notional percentages his Honour laid out are not of universal application and are not rigid, I consider a discount of 12% to be appropriate in the present case, noting that the case that was ultimately resolved was not the case as originally pleaded. By that I mean that it is relevant to the timing of the respondents’ admissions that the pleaded contraventions which they admitted were less onerous than the case which the applicant originally pleaded. On the chronology before me the respondents admitted liability at the time of, or very shortly after, the amended claim before the Court was made by the applicant which withdrew a number of elements of the original claim.

Prior Contraventions

85    I acknowledge the Union’s history of non-compliance with industrial laws. I take into consideration, as the applicant submits, that as at the hearing of this matter, the Union had been held to have contravened s 500 of the Act in no less than 55 cases since 2010, resulting in over 185 contraventions. It has also been held to have contravened s 499 in six cases since 2010, resulting in ten contraventions. I accept that this history, in addition to the circumstances of the contravening conduct, indicates that specific deterrence assumes particular importance in respect of the Union.

86    As to the individual respondents, I take into consideration that Mr Simpson has contravened industrial laws, and s 500 in particular, on a prior occasion: see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Monash Freeway Widening Case) [2022] FCAFC 59 (Bromberg, Charlesworth and McElwaine JJ).

87    I also take into consideration that Mr Tzimas has contravened industrial laws on a number of other occasions, which have included contraventions of s 500 of the Act: see, eg, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The U-Vet School Case) [2022] FCA 1068 (O’Callaghan J); Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FedCFamC2G 1060 (Judge Mansini); Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (The Mordialloc Freeway Project Case) [2024] FCA 655 (Snaden J).

88    Mr Harris has also previously contravened industrial law, and s 500 in particular: see Mordialloc Freeway Project Case (Snaden J).

89    There was no submission that Mr Mahy has previously contravened an industrial law.

Deterrence

Specific deterrence

90    The respondents submit, and I accept, that admissions of liability that are accepted by the regulator in full discharge of the contraventions alleged are important considerations relevant to both specific and general deterrence, citing 85 Degrees Coffee at [53] (Bromwich J). In respect of specific deterrence, I consider, as Bromwich J did at [54], that admissions of liability are one of the most potent indications of acceptance of wrongdoing and therefore a strong indication of a reduced risk of recurrence. This reduces the need for deterrence in the penalty imposed. Bromwich J considered that the earlier the admission is made, the more potent an indicator the admission of liability is likely to be.

91    In the present matter, the admissions were made after the proceeding was set down for trial, but before evidence and submissions were filed in respect of the hearing on liability. As I explained above, the admissions were made at the time of, or very shortly after, the amended claim before the Court was made by the applicant. Those admissions reduce the need for specific deterrence.

Scheme of administration and its relevance to specific deterrence

92    The applicant brought to the Court’s attention a number of clauses within the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 (Cth) which it submits has a bearing on penalty. The Determination was made on 23 August 2024 and had the effect of, among other things, placing the Construction and General Division of the Union under administration and appointing Mr Mark Irving KC as the administrator (the Administration).

93    Clause 3(1)(a) of the Determination relevantly declares that, on the appointment of the Administrator pursuant to s 323C(1) of the Fair Work (Registered Organisations) Act 2009 (Cth), certain offices will be vacated. However, pursuant to cl 3(1)(c) of the Determination, the vacation of certain offices does not affect the continued employment of a person (including organisers) who is not employed or a paid official by reason of that person holding an office vacated as a result of cl 3(1)(a).

94    Additionally, pursuant to cl 7(1)(b) of the Determination, the Administrator is entitled to direct a particular person who continues to hold office or employment to perform no work or different work for such time as the Administrator considers appropriate. The applicant relies on this to submit that the Court cannot assume that Mr Simpson will continue doing the administrative duties that he is presently carrying out.

95    The responsibilities of the Administrator are provided for at cl 9 of the Determination, which relevantly include that the Administrator may make any changes to the Divisional Rules that the Administrator considers necessary or appropriate to ensure the lawful and effective operation of the Administered Division and Administered Divisional Branches (cl 9(1)(b)(i)), and may establish and implement policies to ensure the Administered Division will be able to operate lawfully and effectively (cl 9(1)(c)(ii)). Additionally, pursuant to cl 12(a)(ii), the Administrator has the power to suspend, remove, expel, or disqualify an office holder of the Administered Division or an Administered Divisional Branch whom the Administrator is satisfied is of bad character or for misconduct. Pursuant to cl 12(b), the Administrator has the power to suspend or terminate the employment of any employee of the Administered Division or an Administered Divisional Branch.

96    The respondents say that the Administration will appreciably ameliorate the need for specific deterrence in respect of the Union. They say further that the imperative to generally deter officials of the Union is also attenuated.

97    The applicant complains that Mr Irving has not given any evidence about the consequences that he may visit upon organisers if they continue to break the law. However, Mr Irving does have disciplinary action powers pursuant to cll 12(a) and (b) described at [95]. At [9] of his affidavit, Mr Irving deposes that he will seek to ensure that all employees and officers carry out the business of the Union lawfully, including ensuring the lawful exercise of right of entry. At [10] of his affidavit, Mr Irving deposes to the steps that will be undertaken for the next six months as an Administrator. Additionally, in Mr Tzimas’s and Mr Harris’s further affidavits, they depose that there was a meeting held with all of the Victorian/Tasmanian Union Branch organisers with Mr Grahame McCulloch (then the Branch Executive Officer) and Mr Zach Smith (ACT Branch Secretary) on 29 August 2024 whereby Mr Tzimas and Mr Harris were instructed to ensure that they “played within the rules when carrying out [their] duties as an organiser” and “utilise the tools [they] have legally”. Both Mr Tzimas and Mr Harris deposed that they intend to comply with this direction.

98    The applicant submits further that the Administration is only “for a short period” and “will not continue indefinitely”, and therefore in the context of what the applicant describes as a history of “20 years” of “these sort of contraventions”, the Administration may not deter the Union from engaging in future contraventions. It also says that it is too early for the Court to conclude that the need for specific deterrence has atrophied. It additionally submits that the Administration was not voluntary, and the officials have not welcomed the Administration with open arms, which raises questions about the extent that there will be compliance with Mr Irving’s directions.

99    I consider that the Administration is a relevant consideration to specific deterrence, and that it reduces but does not eliminate the need for specific deterrence. Pursuant to ss 323A(2), 323D(2A) and 323E of the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth), the Administration is to continue for a minimum of three and maximum of five years from the date it began (subject to the provisions for variation and revoking the scheme prior to this date as set out in ss 323B and 323D(1A) and (2A)). I consider these periods of time to be significant such that cultural changes may occur at the Union that may reduce the chance that the contravening conduct is repeated. I consider the Administration to be relevant to both the individual respondents who remain employed with the Union, being Mr Simpson and Mr Tzimas, and in respect of the balance of the officials of the Union who are subject to Mr Irving’s directions.

The individual respondents

100    Penalties need to reflect considerations of personal deterrence: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 at [128]–[129] (White J).

101    The respondents submit that the conduct of the individual respondents was not arbitrary or capricious. This does not entitle the respondents to a discount on penalty but does, at least, bear on the seriousness of the contravening and places the contraventions outside the highest end of the spectrum of seriousness. The respondents accept that specific deterrence retains a role for Mr Simpson and Mr Tzimas.

102    As to Mr Simpson, he remains employed with the Union. However, Mr Simpson deposed in his affidavit of 12 September 2024 that as of August 2024 he had handed back all right of entry permits to the Union and remains employed as an organiser with the Union in an administrative capacity only. He no longer exercises a right of entry. There was no evidence about if, or when, this might change. I consider the changed nature of Mr Simpson’s employment to diminish but not remove the importance of specific deterrence in respect of him. I rely on what is set out above about Mr Simpson’s prior contravention of s 500, and the timing of his first contravention in this matter occurring very soon after he attended the group training.

103    As to Mr Tzimas, I consider that specific deterrence still has a meaningful role to play given his ongoing employment with the Union and to ensure that he does not engage in similar conduct in the future. Again, I rely on what is set out above about Mr Tzimas’s prior contraventions and his previous attendance at training.

104    Mr Mahy deposed in his affidavit of 13 September 2024 that in August 2024 he resigned from the Union. He deposed further that he does not intend on working for a union again and does not intend on applying for any right of entry permits again at a state or federal level. Following his resignation, Mr Mahy returned all entry permits to the Union. I therefore consider that specific deterrence has a limited role to play in respect of Mr Mahy.

105    Shortly before the delivery of this judgment, Mr David Vroland, solicitor for the respondents, filed a further affidavit deposing to the fact that Mr Harris ceased his employment with the Union on 1 July 2025. There was no objection to the tendering of that affidavit. Unlike Mr Mahy, there was no information about whether Mr Harris intended to work for the Union, or another union, again. I therefore consider that specific deterrence has a reduced role to play in respect of Mr Harris, though less reduced than for Mr Mahy.

General deterrence

106    I consider the cooperation of the respondents in this proceeding and the admissions made by them to have advanced the objectives of general deterrence. As explained, the proceedings resolved at a stage when evidence and submissions were not yet filed, meaning that the regulator could be freed to devote its resources to other investigations and compliance activities, a point acknowledged in 85 Degrees Coffee at [56] (Bromwich J) and the Agreed Penalties Case at [109]–[110] (Keane J). Bromwich J explained in 85 Degrees Coffee at [56] the impact of admissions on the objective of general deterrence, relevantly stating that admissions have the capacity to increase the overall deterrence effect of the work of a regulator because each proceeding that does not need to go to a liability trial is likely to increase compliance and investigation activities in other cases, increasing the risks of detection, investigation, and proceedings being brought successfully and penalties being imposed on other contravenors to advance general deterrence.

107    As to the Administration, the applicant submits, and I accept, that general deterrence is not attenuated by the Administration, and that a message still needs to be sent to registered organisations, including those in administration.

Harm or risk of harm

108    The respondents contend that Mr Harris’s conduct on 14 April 2021, Mr Simpson’s and Mr Tzimas’s conduct on 15 April 2021 and Mr Mahy’s conduct on 4 May 2021 did not cause any risk of harm to any person. As discussed at [49], [52], [55]-[56] and [61], the applicant submits, and I accept, that this contention is not correct. Having found that Mr Harris, Mr Simpson and Mr Tzimas contravened s 499, I necessarily consider that each of them failed to comply with a reasonable request to comply with an OHS requirement. Those failures created at least a risk of harm.

109    As to Mr Mahy’s conduct, which involved a contravention of s 500 of the Act, I consider that the conduct carried with it at least some risk of harm to Mr Schmitz’s privacy, even if his physical safety may not have been at risk.

110    As explained above, I also find that Mr Simpson’s conduct on 17 March 2021 carried a risk of harm to those at the Artisan East Site, having resulted in workers’ power being cut off without notice.

DOUBLE JEOPARDY - SECTION 556

111    As explained above, section 556 of the Act provides that if a person is ordered to pay a pecuniary penalty under a civil remedy provision of the Act 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 same conduct.

112    I accept the applicant’s election to seek penalties for the contraventions of s 499 in these circumstances, and note that the applicant therefore does not seek penalties for the following contraventions:

(a)    Mr Harris’s contravention of s 500 on 14 April 2021 referred to at [12] of the Amended Originating Application;

(b)    Mr Simpson’s contravention of s 500 on 15 April 2021 referred to at [17] of the Amended Originating Application; and

(c)    Mr Tzimas’s contravention of s 500 on 15 April 2021 referred to at [18] of the Amended Originating Application.

COURSE OF CONDUCT – MR TZIMAS ON 15 APRIL 2021

113    The applicant sought penalties and declarations for three contraventions arising from the conduct of Mr Tzimas on 15 April 2021. First, a contravention of s 499 for failing to comply with a request of Ironside to leave the construction zone. Second, a contravention of s 500 for acting in an improper manner by that same refusal to leave the construction zone. Third, a contravention of s 500 for acting in an improper manner by causing the excavator to stop work.

114    At the hearing Mr Tzimas submitted that the refusal to leave the construction zone and causing the excavator to stop work were a course of conduct. He submitted that those events were factually, temporally and legally related, and flow from one another and follow from the same conduct. They involve contraventions of the same provision. Section 557 of the Act provides that two or more contraventions of certain listed civil remedy provisions are taken to constitute a single contravention if: (a) the contraventions are committed by the same person; and (b) the contravention arose out of a course of conduct. Sections 499 and 500 are not listed in s 557 and accordingly that section does not apply in the present circumstances. However, s 557 does not preclude the operation of common law course of conduct principle: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 at [88]–[95] (Ross J) and [191] (Rangiah J), with Flick J broadly agreeing at [4].

115    Common law course of conduct is a “tool of analysis” which the Court is not compelled to utilise: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 at [41] (Middleton and Gordon JJ) and the cases there cited.

116    The applicant accepts that the contraventions of Mr Tzimas on 15 April 2021 constituted one course of conduct at common law. However, the applicant submits, and I accept, that the common law course of conduct principle does not require me to make one declaration, and impose one penalty, for that course of conduct: Cahill at [41]–[44], [47] (Middleton and Gordon JJ); Hutchison Ports Appeal at [90] (Ross J). Ordinarily, a finding of a common law course of conduct still requires the imposition of a penalty for each contravention: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 at [148] (Dowsett, Greenwood and Wigney JJ). I have approached the conduct of Mr Tzimas on 15 April 2021 as one course of conduct at common law. The penalties imposed on Mr Tzimas will take account of that course of conduct, although I will make three declarations of contravention in respect of that conduct.

SECTIONS 550 AND 793

117    There was no dispute between the parties as to the Union’s liability pursuant to ss 550 and 793 of the Act. The declarations are framed, as agreed by the parties, by reference to s 550 of the Act.

118    I am satisfied that the Union is liable for its involvement in each of the occasions when Messrs Simpson, Harris, Tzimas, and Mahy contravened the Act by operation of ss 550 and 793 of the Act. I am satisfied, as the Union admits, that it was knowingly concerned in those contraventions for the purposes of s 550(2)(c) of the Act and is therefore taken to have contravened ss 499 and 500 of the Act on each of the occasions pursuant to s 550(1) of the Act. Further, insofar as it is necessary, I am satisfied, as the Union admits, that each of the individual respondents were officers of the Union for the purposes of s 793(1)(a) of the Act, and that the Union possessed the same state of mind as the individual respondents.

SUSPENDED PENALTY

119    The respondents submit that any penalty imposed on the individual respondents should be wholly suspended conditional on them not breaching the Act for the next 10 years. They say these suspended penalties would be facilitative of the object of deterrence.

120    The Court has a discretionary power to suspend the operation of a pecuniary penalty order for a specific period and subject to conditions by virtue of s 545(1) of the Act which empowers the Court to make “any order the court considers appropriate” if satisfied that a contravention of a civil remedy provision has occurred: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Quest Apartments Case) (No 2) [2018] FCA 163; 358 ALR 725 at [66] (Tracey J).

121    In Quest Apartments at [69], Tracey J set out factors relevant to determining whether a penalty ought to be suspended. His Honour cited his remarks in Director of the Fair Work Building Industry Inspectorate v Ellen (The Longford Gas Plant Case) [2016] FCA 1395; 68 AILR 102-711 at [57]–[59], where Tracey J stated that any penalty imposed must be meaningful and operate as a deterrent both to the contravenor and to others that might be tempted to engage in similar conduct. The penalty must also reflect the need to maintain public confidence in the operation of the enterprise agreements which regulate the employment of large numbers of Australian workers. The penalty, whether suspended or not, must be meaningful for the purpose of both specific and general deterrence. Additionally, factors such as the seriousness of the offending conduct, the contravenor’s prior conduct and the prospect of any future contravention coming to the attention of the applicant in a particular proceeding.

122    The applicant submits that a 10-year suspended sentence would not serve a deterrent purpose and would be wholly inappropriate. The applicant also maintains that, notwithstanding that Mr Mahy no longer works for the Union, any penalty imposed on him should not be suspended as one should not escape culpability through deciding that they no longer wish to be a union organiser. The fact remains that Mr Mahy has contravened the Act and that contravention was serious.

123    I will not suspend the sentences of the individual respondents. I do not think, in this case, that suspending the sentences of the individual respondents would achieve the impact of specific deterrence in respect of the individual respondents, nor do I consider that it achieves the impact of general deterrence. Further, in deciding not to suspend the sentences, I consider that the contraventions committed by the individual respondents were serious, and that Mr Simpson, Mr Harris and Mr Tzimas have prior contraventions.

TOTALITY

124    In Mill v The Queen (1988) 166 CLR 59 at 62–3 (Wilson, Deane, Dawson, Toohey and Gaudron JJ) the High Court described the totality principle as a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. The Court extracted from Thomas DA, Principles of Sentencing (2nd ed, Ashgate Publishing Limited, 1979), at 56–7 where it is stated that:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.

125    The totality principle has been adopted in the industrial law context: see Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383 at [42] and [91] (Stone and Buchanan JJ); Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102; 247 FCR 154 at [39] (Tracey and Buchanan JJ).

126    I have had regard to the aggregate penalties imposed on Messrs Simpson and Tzimas, and on the Union. In the circumstances set out above I consider the total penalties I will award to be just and appropriate to achieve the goal of deterrence.

DECLARATIONS

127    The parties agree that the Court should grant declaratory relief in respect of the agreed contraventions, and have come to an agreed position as to the terms of the declarations sought. It is uncontroversial that this Court has the power to grant declaratory relief where the terms of the declarations record the results of the case or otherwise mark the Court’s disapproval of conduct undertaken in breach of statute: Cruse v Multiplex Ltd [2008] FCAFC 179; 172 FCR 279 at [53] (Goldberg and Jessup JJ); Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 at [78] (Wheelahan J); Australian Building and Construction Commissioner v Menon [2020] FCA 1418 at [45] (White J); cf Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 at [91]–[100] (Snaden J). The question of whether declarations should be made is a matter for my discretion. I consider it appropriate to make those declarations in the terms agreed on by the parties. I consider there to be an educative and deterrent effect directed towards both the respondents and members of the public in making declarations which concisely record the effect of my decision in this matter. The declarations sought effectively define and publicise the type of conduct that constitutes a contravention of the Act and clearly set out the foundation on which the pecuniary penalty, including that based on accessorial liability, is grounded: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693; 207 ALR 329 at [21] (Lee J).

128    The declarations as agreed by the parties will be made.

APPROPRIATE PENALTIES AND DISPOSITION

129    At the time the contravening conduct occurred, a contravention of ss 499 and 500 of the Act each attracted 60 penalty units: s 539(2) of the Act. The value of the penalty at that time was $222. Accordingly, the maximum penalty that might be imposed for each contravention is $13,320 in respect of the individual respondents. Pursuant to s 546(2)(b), the maximum penalty that might be imposed for each contravention in respect of the Union, as a body corporate, is five times higher than that of the maximum penalty for the individual respondents, being $66,600.

130    I have set out in table form the penalties that attach to each respondent for each of their contravening conduct. The penalties are referable to a low, middle, and high range. That approach is consistent with the submissions of the parties. Those ranges reflect the bottom, middle, and top third of the maximum penalty.

Table 1 Proposed and imposed penalties for contraventions

131    The penalties for Mr Simpson take account of my assessment of the seriousness of the events on both 17 March 2021 and 15 April 2021. As discussed above, they allow for discounts for corrective action, contrition and admissions, co-operation, and the Union’s Administration. They take account of Mr Simpson’s prior contravention and of my assessment of the diminished need for specific deterrence for Mr Simpson. In respect of 15 April 2021 a penalty is imposed for the contravention of s 499 and, by operation of s 556, no penalty is imposed for the contravention of s 500 on that day. I have reviewed the aggregate penalty and consider it just and appropriate.

132    The penalties for Mr Harris take account of my assessment of the seriousness of the events on 14 April 2021. As discussed above, they allow for discounts for corrective action, contrition and admissions, co-operation, and the Union’s Administration. They take account of Mr Harris’s prior contravention, but also the reduced need for specific deterrence for Mr Harris given that he has ceased employment with the Union, as discussed at [105] above. A penalty is imposed for the contravention of s 499 and, by operation of s 556, no penalty is imposed for the contravention of s 500.

133    The penalties for Mr Tzimas take account of my assessment of the seriousness of the events on 15 April 2021. As discussed above, they allow for discounts for corrective action, contrition and admissions, co-operation, and the Union’s Administration. They take account of Mr Tzimas’s prior contraventions and of my assessment that specific deterrence still has a meaningful role to play for Mr Tzimas. In respect of 15 April 2021 a penalty is imposed for the contravention of s 499 and, by operation of s 556, no penalty is imposed for one contravention of s 500 on that day. As discussed above I have taken account of Mr Tzimas’s course of conduct in failing to comply with the request to leave the construction zone and causing the excavator to stop work. I have reviewed the aggregate penalty and consider it just and appropriate.

134    The penalties for Mr Mahy take account of my assessment of the seriousness of the events on 4 May 2021. The penalty allows for discounts for corrective action, contrition and admissions, co-operation, and the Union’s Administration. They take account of the apparent absence of any prior contraventions by Mr Mahy and of my assessment of the diminished need for specific deterrence for Mr Mahy in light of the changed circumstances of his employment, including his unchallenged evidence that he no longer seeks to be employed with a union.

135    The penalties imposed on the Union take account of my assessment of the seriousness of the events on 17 March 2021, 14 and 15 April 2021, and 4 May 2021. As discussed above, they allow for discounts for corrective action, contrition and admissions, co-operation, and the Union’s Administration. They take account of the Union’s many prior contraventions and of my assessment of the need for specific and general deterrence, including within the context of the Administration as discussed above. As discussed, the penalties reflect the operation of s 556 and the common law approach to course of conduct. I have reviewed the aggregate penalty imposed on the Union and in the circumstances, I consider a just and appropriate aggregate penalty to be $144,000.

136    I shall make orders and declarations reflecting these reasons. The Act restricts the making of orders for costs. No order for costs was sought or will be made.

Associate:

Dated:    19 December 2025

SCHEDULE OF PARTIES