Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2)

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2) [2021] FCA 263 File number: QUD 388 of 2016 Judge: COLLIER J Date of judgment: 23 March 2021 Catchwords: INDUSTRIAL LAW – penalty hearing – determination of pecuniary penalties to be imposed – where union officials contravened civil remedy provisions of Fair Work Act 2009 (Cth) – where union contravened civil remedy provision through union official's conduct – quantum of penalties to be imposed – nature and extent of the contravening conduct – whether contravening conduct was serious – whether prior contraventions found subsequent to contravening conduct should be an aggravating factor or disentitle respondents to discount – whether prior contraventions of union justified penalty in the upper range – the relevance of prior contraventions proportionality of penalty to seriousness of contravening conduct – whether divergence in application of Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 – whether contraventions by the fourth respondent involved a course of conduct under s 556 Fair Work Act 2009 (Cth) – whether involvement of senior management an aggravating factor – whether lack of contrition an aggravating factor – genuine belief – "taking the odds" – deterrence as the principal object of imposing civil penalties – whether need for specific deterrence when respondents no longer engaged in union role – where pecuniary penalties imposed on both union officials and union – whether power to make personal payment order and prevent indemnity from union enlivened by application for penalty under s 546 Fair Work Act 2009 (Cth) – whether personal payment orders appropriate Legislation:

Fair Work Act 2009 (Cth) ss 417, 500, 545(1), 545(2), 546, 550, 556, 793 Federal Court Rules 2011 rr 8.01(1), 8.03(1), 8.03(2) Cases cited:

Australia Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case) [2020] FCA 1742 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458; [2017] FCAFC 53 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262; [2019] FCAFC 59 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCCA 3261 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 Australian Building and Construction Commissioner v Construction, Forestry, Maratime, Mining and Energy Union (Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 105 Australian Building and Construction Commissioner v Menon [2020] FCA 1418 Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 Chester v The Queen (1988) 165 CLR 611; [1988] HCA 62 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 Construction Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208; [2018] FCAFC 126 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2019) 272 FCR 290; [2019] FCAFC 201 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) (2020) 274 FCR 19; [2020] FCAFC 9 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 Fair Work Ombudsman v Construction, Forestry, Mining, Maritime and Energy Union (The Hutchinson Ports Appeal) [2019] FCAFC 6 Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847 Gilshenan v The Queen [2019] NSWCCA 313 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15; [2015] FCAFC 56 NW Frozen Foods; Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007)161 FCR 513; [2007] FCAFC 146 Parker (2019) 270 FCR 39; [2019] FCAFC 56 Pattinson v Australian Building and Construction Commissioner (2020) 384 ALR 75; [2020] FCAFC 177 PIA Mortgage Services Pty Ltd v King (2020) 292 (IR) 317; [2020] FCAFC 15 Registered Organisations Commissioner v Australian Workers' Union (No 2) [2020] FCA 1148 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 Transport Workers' Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40; [2018] FCAFC 203 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; [2003] FCAFC 193 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 Date of hearing: 19 November 2019 Date of last submissions: 8 December 2020 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 113 Counsel for the Applicant: Mr C Murdoch QC and Mr S Mackie Solicitor for the Applicant: Clayton Utz Counsel for the Respondents: Mr W L Friend QC and Mr C Massy Solicitor for the Respondents: Hall Payne Lawyers ORDERS QUD 388 of 2016 BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant AND:

JADE INGHAM

First Respondent MICHAEL MYLES Second Respondent ANDREW SUTHERLAND (and others named in the Schedule) Third Respondent JUDGE:

COLLIER J

DATE OF ORDER:

1. The second respondent (Michael Myles) pay a penalty of $5,100 in respect of contravention of section 500 of the Fair Work Act 2009 (Cth) (FW Act) dealt with in declaration 1 of the Court's orders dated 24 July 2019.

2. The third respondent (Andrew Sutherland) pay a penalty of $3,570 in respect of his contravention of section 500 of the FW Act dealt with in declaration 2 of the Court's orders dated 24 July 2019.

3. The fourth respondent (Chad Bragdon) pay a penalty of $7,650 in respect of his contraventions of sections 417 and 500 of the FW Act dealt with in declarations 3 and 4 of the Court's orders dated 24 July 2019.

4. The fifth respondent (Kevin Griffin) pay the following pecuniary penalties:

5. The sixth respondent (the Construction, Forestry, Maritime, Mining and Energy Union) pay the following pecuniary penalties:

(a) $28,050 in respect of the contravention of section 500 of the FW Act dealt with in declaration 7 of the Court's orders dated 24 July 2019.

(b) $20,400 in respect of the contravention of section 500 of the FW Act dealt with in declaration 8 of the Court's orders dated 24 July 2019.

(e) $20,400 in respect of the contravention of section 500 of the FW Act dealt with in declaration 12 of the Court's orders dated 24 July 2019.

6. The applicant serve these orders on:

7. The pecuniary penalties referred to in paragraphs 1 to 5 of these Orders be paid to the Commonwealth of Australia within 28 days of these Orders being made by the Court.

8. The proceeding otherwise be dismissed.

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

REASONS FOR JUDGMENT

COLLIER J:

On 9 July 2019, I delivered judgment in Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 1052 (Liability Judgment). The factual background is set out at [4]-[24] of the Liability Judgment.

At relevant times the first to fifth respondents were officials of the sixth respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). In the Liability Judgment I considered whether the respondents contravened provisions of the Fair Work Act 2009 (Cth) (FW Act), in particular ss 417 and 500, by conduct in June and July 2014 in relation to the 180 Brisbane Construction Project.

Relevantly I made the following findings:

· The first respondent, Mr Ingham, did not contravene provisions of the FW Act; · On 27 June 2014 at the 180 Brisbane Construction Project, the second respondent, Mr Myles, contravened s 500 of the FW Act, namely he acted improperly in exercising or seeking to exercise a right conferred by Part 3-4 of the FW Act by failing to give the required notice prior to entering the project site (Site), entering the Site notwithstanding statements that he was not to enter and using offensive language when instructed not to enter; · On 7 July 2014 at the 180 Brisbane Construction Project, the third respondent, Mr Sutherland, contravened s 500 of the FW Act, in that he acted improperly in exercising or seeking to exercise a right conferred by Part 3-4 of the FW Act by failing to give the required notice prior to entering the Site, not providing an entry notice and not signing the visitor's register as required by Watpac's Site Safety Protocols; · On 17 July 2014 at the 180 Brisbane Construction Project, the fourth respondent, Mr Bragdon, contravened the FW Act as follows:

(i) organising or being involved in the stoppage by the Talbrace employees, or (ii) otherwise failing to give the required notice prior to entering the Site, not providing an entry notice and not signing the visitor's register as required by Watpac's Site Safety Protocols.

· The fifth respondent, Mr Griffin, contravened the FW Act as follows:

· The sixth respondent, the CFMMEU, contravened the FW Act referable to the conduct of Mr Myles, Mr Sutherland, Mr Bragdon and Mr Griffin.

While judgment on penalties was reserved the parties filed further written submissions addressing principles emerging from the decisions of the Full Court of the Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2019) 272 FCR 290; [2019] FCAFC 201 and Pattinson v Australian Building and Construction Commissioner (2020) 384 ALR 75; [2020] FCAFC 177. In CFMMEU v ABCC the Full Court found, materially, that s 556 of the FW Act should be interpreted such that when a party engages in particular conduct that contravenes more than one provision, only one penalty ought be imposed in respect of that conduct. In Pattinson the Full Court reiterated that the primary purpose of civil penalty proceedings is deterrence, and in the context of assessment of an appropriate penalty any history of past contraventions on the part of the contravenor is relevant only to that purpose.

The remaining task before the Court is the assessment of appropriate penalties in respect of each contravention of the FW Act by each of the second to fifth respondents (henceforth, collectively individual respondents), and, by derivative liability pursuant to either s 793 or s 550 of the FW Act, the CFMMEU.

PROPOSED ORDERS

By their submissions filed in this proceeding, the applicant submitted that imposition of the following pecuniary penalties under s 546 of the FW Act would be appropriate:

· In relation to Mr Myles, a pecuniary penalty of $9,180 (90% of the maximum) for the contravention of s 500 of the FW Act on 27 June 2014.

· In relation to Mr Griffin:

· In relation to Mr Sutherland, a pecuniary penalty of $8,160 (80% of the maximum) for the contravention of s 500 of the FW Act on 7 July 2014.

· In relation to Mr Bragdon:

· In relation to the CFMMEU, a pecuniary penalty of 100% of the maximum for each of the six contraventions, being a total of $306,000.

The applicant also sought orders that the second to fifth respondents be personally responsible for paying any penalties, and that they be restrained from seeking or receiving direct or indirect indemnity from the CFMMEU with respect to those penalties. The applicant first raised personal payment orders in these terms in submissions filed after the delivery of the Liability Judgment.

The respondents submitted that the imposition of the following penalties under s 546 of the FW Act would be appropriate:

· In relation to Mr Myles, a pecuniary penalty between $2,550 and $3,060 (25-30% of the maximum) for the contravention of s 500 of the FW Act on 27 June 2014.

· In relation to Mr Sutherland, a pecuniary penalty between $2,550 and $3,060 (25-30% of the maximum) for the contravention of s 500 of the FW Act on 7 July 2014.

· In relation to Mr Bragdon, a pecuniary penalty between $3,570 and $4,080 (35-40% of the maximum) for the contraventions of both ss 417 and 500 of the FW Act on 17 July 2014.

· In relation to Mr Griffin, a pecuniary penalty between $2,550 and $3,060 (25-30% of the maximum) for each contravention of s 500 of the FW Act on both 1 and 4 July 2014.

· In relation to the CFMMEU, a penalty between $17,850 and $33,150 for each contravention.

The respondents did not oppose orders awarding payment to the Commonwealth of any penalties imposed, however they opposed personal payment orders against the second to fifth respondents.

RELEVANT LEGAL PRINCIPLES

Sections 545(1) and 545(2) of the FW Act set out the orders open to the Federal Court of Australia in relation to contraventions of the FW Act:

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

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

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

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

Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463

(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:

Section 546 of the FW Act provides:

(1) The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Note: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

Determining amount of pecuniary penalty (2) The pecuniary penalty must not be more than:

Payment of penalty (3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

Recovery of penalty (4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.

No limitation on orders (5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

In relation to s 546, the plurality of French CJ, Kiefel, Bell, Nettle and Gordon JJ in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 (Agreed Penalties Case) observed:

55. No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:

"Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act."

(Footnotes omitted) In Pattinson, Allsop CJ, White and Wigney JJ observed in respect of s 546:

97. There is no basis to construe s 546 other than as the source of power in the court to impose a civil penalty for a stated and proven contravention. There is no reason (textually or contextually derived) to construe the provision as empowering a court to impose more than one penalty for a proven contravention. The words do not permit multiple penalties for the same contravention. This approach has been universal to the imposition of civil penalties and underlies the body of jurisprudence on the so-called "course of conduct" principle, as to which cases see [116] below.

98. The court's task is to determine and impose a penalty that it considers "appropriate" if it is satisfied that a person upon whom the penalty is to be imposed has contravened a civil remedy provision. That task is to be undertaken in the light of the object or purpose of the imposition: the promotion of the public interest in compliance with the provision of the statute in question, by deterrence, specific and general. It is clear that the object of deterrence is directed to the subject contravention. That is, it is the deterring of contraventions of the kind before the court to which regard must be had in fixing the penalty that is considered appropriate, by reference to the frame of reference or yardstick provided by the maximum penalty as set by Parliament. Thus, it will always be important to understand the nature, character and full context of the contravening.

Both ss 417(1) and 500 are civil remedy provisions. It is common ground that the maximum penalty for a contravention of either ss 417 or 500 at the time of the contraventions was $10,200 for an individual (60 penalty units, with each penalty unit being $170) and $51,000 (300 penalty units) for a body corporate.

The imposition of a penalty and the quantum of any penalty imposed is a matter of discretion for the Court: PIA Mortgage Services Pty Ltd v King (2020) 292 (IR) 317; [2020] FCAFC 15 at [54]. Although the authorities warn against a rigid checklist, there are well-established principles which guide the exercise of the Court's discretion to determine an appropriate penalty. Those principles were recently explained by the Full Court in Pattinson at [99] as follows:

(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.

In this context, as their Honours observed:

100. The setting out of such factors is of assistance, however, not only in capturing relevant matters, but also in providing the necessary focus: that it is to the contravention in question to which the penalty is directed. This is not because there is a retributive principle that there must be equality between act and punishment for the crime, but because the contravention (and its nature, quality and seriousness) must be considered and understood such that the appropriate penalty be imposed to deter such a contravention in the future. The features of the contravention that can be seen to be relevant to its seriousness will find their place, not in the operation of some freestanding retributively-derived principle of proportionality, but in understanding the degree of deterrence necessary to be reflected in the size of the penalty…Importantly, however, the imposition of an appropriate penalty, given the object of deterrence, does not authorise and empower the imposition of an oppressive penalty that is one that is more than is appropriate to deter a contravention of the kind before the court. The primacy of the object of deterrence does not unmoor or untether the consideration of appropriateness from the circumstances and the contravention before the court and what is reasonably necessary to deter contraventions of the kind before the court. Notions of reasonableness inhering in statutes as part of the principle of legality would deny a construction that sought to do so, at least without the clearest language. Any such construction would entail the risk of personal predilection, not principle, guiding the imposition of penal sanction with necessary attendant problems of inconsistency, a consequence not to be attributed to Parliament… (See also NW Frozen Foods; Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007)161 FCR 513 at 527 [58]; [2007] FCAFC 146 at [58]; Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 at 264 [60]; [2012] FCAFC 20 at [60]; and Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at 61 [152]; [2016] FCAFC 181 at [152]; Their Honours continued:

104. These considerations must be assessed, now, in the clear light of the instruction of the High Court in the Agreed Penalties Case (HC) 258 CLR at 506 [55]. If one accepts, as in our view one must by a reading of s 546 in the light of the Agreed Penalties Case (HC), that the penalty is imposed to deter, that it is imposed for the instant contravention and not for past (already penalised) contraventions or past (unpenalised, but unpleaded) contraventions, and (as one takes from s 546 and from the Full Court decisions set out at [98] above) that the penalty is set at what is considered appropriate to deter contravention of such kind, guided by the statutory maximum penalty, but not at a level reasonably thought to exceed that purpose and thus be oppressive, one sees a notion of proportionality within the task set out in s 546. That task, of course, is the imposing of an "appropriate" penalty for the instant contravention to serve the object of deterrence from repetition of like contravening in the future. Proportionality and appropriateness are thus intimately related. Proportionality is not a free-standing principle separate from the requirement of what is "appropriate", rather it is part of that assessment which will necessarily involve examining the nature of the contravention, and all factors that rationally bear on the assessment of the need for deterrence in all the circumstances.

105. The setting of a maximum penalty by Parliament is a part of such a notion of proportionality. Parliament is to be taken to be setting the maximum penalty for cases in which the need for deterrence is strongest, as it is in crime intended for the worst type of case. If the penalty is to be appropriate for the object of deterrence in relation to contravention of the kind before the court the various considerations that bear on the question must display such features as warrant the evaluative conclusion that the penalty is appropriate… In assessing penalties appropriate to the contraventions before me it is helpful to have regard to these principles, which the parties in turn have addressed in their submissions, referable to each respondent and the CFMMEU.

APPLICATION OF RELEVANT PRINCIPLES

Nature and extent of the conduct and the circumstances in which the conduct took place As I have already noted, in the Liability Judgment the individual respondents were each found to have contravened s 500 of the FW Act. Mr Bragdon was further found to have contravened s 417 of the FW Act. The CFMMEU was liable for those contraventions by reason of ss 550 or 793 of the FW Act.

Section 500 of the FW Act provides:

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 (see section 502).

The applicant submitted that the contraventions of s 500 of the FW Act by the individual respondents should be regarded as serious, and not inadvertent, for the following reasons:

· an entry permit confers extensive powers and rights which "significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry": Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15 at 20 [13-[14]; [2015] FCAFC 56 at [13]-[14]; · courts regard contraventions of industrial laws more seriously than in the past: Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467 at 487 [72]; [2005] FCA 1847 at [72]; · the CFMMEU was advised on 19 June 2014 by Mr Brockhurst of Watpac of the requirement to have a valid entry notice to enter the Site; · Watpac had signs posted at entry points in respect of protocols and requesting visitors to sign the visitor's book; and · each of the individual respondents had been informed at the time of the contravention that they did not have permission to enter.

The respondents argued that the contraventions in entering without a permit should be regarded at the lower end of the scale of seriousness as the individual respondents had genuinely believed they were lawfully entitled to enter, and the contraventions arose out of a failure to comply with technical requirements of giving notice and signing in.

The respondents contrasted the individual respondents' conduct in contravening s 500 of the FW Act with conduct the subject of consideration in Construction Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208; [2018] FCAFC 126, where the relevant union official was found to have contravened ss 484 and 550(1), by, inter alia:

The applicant submitted that the conduct of the individual respondents in the present case was only distinguishable from the relevant conduct in The Broadway on Ann Case in that:

· Mr Myles' use of bad language, "and you can tell them I said to go and get fucked", when advised by Mr Ross that he could not enter the site, was not common to the other respondents; and · Mr Griffin had committed contraventions of s 500 on two separate occasions (1 and 4 July 2014), which the applicant submitted demonstrated a deliberate refusal to comply with Part 3-4 of the FW Act.

The respondents conceded that Mr Bragdon's contravention of s 417 of the FW Act was objectively more serious than the s 500 contraventions by the individual respondents. Section 417 of the FW Act relevantly provides:

No industrial action

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

(2) The persons are:

Whilst accepting the contravention of s 417 was more serious than a contravention of s 500, the respondents submitted Mr Bragdon's conduct was still at the low end of the scale as he had believed he was entitled to enter the Project Site and there was an absence of threats, abuse or physical violence.

In relation to the respondents claims of a genuine belief of entitlement on the part of the individual respondents to enter the Site, I note my comments and findings in the Liability Judgment at [169]-[177]:

169 Third, as evidence of Mr Myles to which I have already referred indicates, he believed that cl 33.4 of the EBAs with the Project Subcontractors allowed him to enter the Project Site without giving an entry permit. Later for example in cross-examination Mr Myles said:

It was the case, was it, that you just determined that you were just going to go on to site off your own bat?---It was the case that I knew that I had provision to resolve issues under everyone's EBA, and I thought that allowed me to do that.

I suggest that you went to the site on the 27th to exercise your rights under the Workplace Health and Safety legislation?---No.

170 As I noted earlier in this judgment, at material times each of the Project Subcontractors had an approved EBA with the Union within the meaning of ss 12 and 417(1)(a) of the FW Act. Clause 33.4 of the EBA provided:

33.4 A standing invitation exists for any representative of the Union covered by this agreement to enter any place where company employees or representatives are for purposes including, but not limited to, dispute resolution or consultation meetings but not for purposes for which a Right of Entry exists under Part 3-4 of the Fair Work Act.

171 It may very well be that Mr Myles believed that he was empowered by cl 33.4 of the EBA to enter the Project Site without an entry permit, however in that belief he was mistaken. Part 3-4 of the FW Act sets out clear requirements of entry on to premises for purposes prescribed by s 484, and indeed this is specifically recognised by cl 33.4 itself which excludes any standing invitation for Union representatives to enter premises for purposes for which a Right of Entry exists under Pt 3-4 of the FW Act.

172 In any event, it is unclear to me how Mr Myles would be empowered by cl 33.4 of the EBA to enter the Project Site over which Watpac had management and control without an entry permit and/or the consent of Watpac.

173 Finally, the respondents pleaded that Watpac had adopted an open door policy with respect to entry by employees or officials of the Union, and did not require those persons to comply with entry requirements and/or provide an entry notice in accordance with the FW Act or the WHS Act. The ABCC rejected this proposition. It further appears that the respondents did not press this aspect of their Defence with particular conviction – I note for example that in closing submissions the respondents merely referred to the belief of Mr Bragdon that the practice had existed that there was an open door policy on the Project Site. A belief in an "open door" policy was also referred to by Mr Sutherland during the course of the trial (transcript p 325 lln 20-26, p 330 l 3).

174 Mr Ingham gave evidence that the Union did not consider it or its officials bound by the protocols set out in Mr Brockhurst's letter, in particular the notice of entry protocol, on the basis that the Union had a standing invitation to Watpac sites (the subject of a clause in the then existing enterprise agreement) and in light of s 117 of the WHS Act which permitted union officials to enter sites (transcript p 183 lln 17-21). Mr Ingham gave evidence that:

We weren't going to follow something that we didn't agree with.

(transcript p 184 lln 28-29) 175 The ABCC submitted that any doubt the Union may held [sic] in respect of the existence of an "open door" policy in accessing building sites was dispelled by Mr Brockhurst's letter of 19 June 2014 to the Union to the effect that Watpac was updating its right of entry process for entry on to Watpac-controlled sites, and Mr Ross' statements to each of the respondents when they were on the Site on each relevant day.

176 The existence of the letter of Mr Brockhurst to the Union is not in dispute. It is also not in dispute that there was signage outside the Project Site and on the access points of the Project Site requiring, for example, that all visitors report to the Site office and be inducted (I note, eg, evidence of Mr Ross and Mr Butler to this effect).

177 Further, I am not satisfied that there was a "standing invitation" to the Union or its officials to enter Watpac-controlled sites without complying with statutory entry requirements (including notice). Certainly Mr Bragdon conceded that the Watpac EBA as at June 2014 did not contain a standing invitation to Union members (see, eg, transcript p 304 lln 1-10). No evidence of a clause in an EBA constituting a standing invitation by Watpac to Union officials to access its sites was produced to the Court.

I also note that, in relation to Mr Bragdon's conduct, at [247] of the Liability Judgment I formed the view that Mr Bragdon had intentionally hindered or obstructed Watpac.

In my view the conduct of Mr Myles in contravening s 500 was in the moderate range of seriousness. I have formed this view because, while Mr Myles failed to give the required notice, entered the project site, and used offensive language, this was against the background of his belief that he was lawfully entitled to enter the Site. He was mistaken in that belief, which meant that he is not exculpated from liability for contravention, however, for the purposes of assessment of penalty I am not satisfied that his belief was not genuine. The use of offensive language was however inappropriate, albeit not threatening. I do not accept the applicant's submission that Mr Myles' conduct should be characterised as at the upper range of the scale of seriousness.

The conduct of Mr Sutherland can be characterised as being in the lower range of seriousness. Again, Mr Sutherland believed he had a right to enter the Site, albeit that that belief was mistaken. I also note that Mr Sutherland's entry on to the Site was not characterised by the offensive language used by Mr Myles.

The applicant submitted that Mr Bragdon's conduct was serious for the following reasons:

· he deliberately inflicted industrial harm by organising an unauthorised industrial action; · organising an unauthorised industrial action is, in itself, a serious contravention; and · at [243] of the Liability Judgment, I commented that Mr Bragdon appeared to become involved with the stoppage of work based on his personal views regarding the investigator from the Department of Health and Safety.

In my view these submissions have merit. I note that, like the other individual respondents, Mr Bragdon believed that he had a right to enter the Site, however, Mr Bragdon's conduct also involved the added dimension of organising unauthorised industrial action whilst on the Site. In my view Mr Bragdon's conduct was serious.

In respect of the conduct of Mr Griffin, I note that, within a three day span, he twice engaged in similar conduct contravening s 500 of the FW Act. However, I was also satisfied that Mr Griffin believed that he had a right to enter the Site, and that he did not intentionally hinder or obstruct Watpac. I also found that Mr Griffin did not organise unauthorised stoppages by the workers on the Site. In my view Mr Griffin's conduct is in the low to moderate range.

Nature and extent of any loss or damage sustained as a result of the breaches The applicant conceded that the breaches of s 500 of the FW Act by the individual respondents did not cause physical loss or damage.

In relation to the loss or damage by reason of Mr Bragdon's conduct in contravening s 417 of the FW Act, I note that the conduct resulted in an unplanned stoppage of more than two hours: see [237] of the Liability Judgment. The applicant submitted that it could be inferred from the length of the stoppage that significant loss or damage was caused by Mr Bragdon's conduct. In this regard, the applicant relied on the decision of the Full Court in The Broadway on Ann Case which upheld maximum penalties for contraventions of s 500 of the FW Act despite a lack of evidence as to material loss.

The respondents conceded there may have been minor loss from the stoppage of work, but contended no evidence of actual loss had been produced by the applicant.

No evidence was given of any loss arising from the conduct of the individual respondents. I am prepared, however, to infer that there was some loss to Watpac – albeit unquantified – arising from the stoppage in which Mr Bragdon was involved.

The size of the CFMMEU The CFMMEU is a large, asset-rich, and well-resourced union: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7 at [21] and [35], Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case) [2020] FCA 1742 at [68], Australian Building and Construction Commissioner v Menon [2020] FCA 1418 at [117]-[118]. This factor is relevant in determining the size of a pecuniary penalty which would operate as an effective deterrent – a sum required to achieve that object will generally be larger where the company has vast resources: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 90 [105]; [2017] FCAFC 113 at [105].

Whether senior management was involved

As Snaden J observed in Registered Organisations Commissioner v Australian Workers' Union (No 2) [2020] FCA 1148 at [99], corporate conduct that is engaged in contravention of a statutory injunction will be considered more egregious, and therefore more deserving of sterner penalty, if it is engaged in by or with the imprimatur of the body's senior management.

It is not in dispute that each of the second to fifth respondents were officials of the CFMMEU, and to that extent senior personnel of the union. However, the respondents submitted that the individual respondents' conduct bore no similarity to the types of conduct to which this consideration is targeted, referring to Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847 where Merkel J stated:

Whether the breaches of the FW Act were deliberate

The applicant submitted that it was apparent that the contraventions were deliberate from the status and presumed knowledge of the individual respondents and each having been expressly informed that they had failed to provide an entry notice. The applicant further contended that the individual respondents had engaged in flagrant contraventions of the FW Act, which was an aggravating factor.

The relevant conduct of the individual respondents in this case was clearly deliberate. However, as I have already observed, I specifically found that a number of individual respondents had, incorrectly, believed that they had a lawful entitlement to enter the Site, and that this belief was referable, inter alia, to the relevant enterprise bargaining agreement with the Project Subcontractors (at [169] in respect of Mr Myles, at [173] in respect of Mr Bragdon, and at [197] in respect of Mr Griffin of the Liability Judgment). While misguided and not relevant to the existence of contraventions by the individual respondents, I am not prepared to find for the purposes of assessment of penalty that those beliefs were unreasonable, or that contraventions on the part of these individual respondents were deliberate flouting of the law.

Corporate culture, and contrition or taken corrective action There is no evidence before me of any contrition or corrective action on the part of the individual respondents or the CFMMEU. Further, the history, including recent history, of contraventions by the CFMMEU strongly suggests a corporate culture in the CFMMEU which is not conducive to compliance with the FW Act.

In its submissions filed 16 August 2019 the applicant set out the history of previous similar conduct by the respondents. Seventy six pages of those submissions identified prior penalties and declarations under industrial laws involving the CFMMEU. More than 150 findings of contraventions have been made against the CFMMEU. The applicant drew particular attention to the comments of Jessup J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173, where, in relation to the preparation of a similar schedule, his Honour stated:

29. … The schedule paints, one would have to say, a depressing picture. But it is more than that. I am bound to say that the conduct referred to in the schedule bespeaks an organisational culture in which contraventions of the law have become normalised… The history of contraventions of the FW Act by each of the individual respondents is as follows:

· The second respondent, Mr Myles, has 11 prior contraventions, namely three contraventions of s 343(1); five contraventions of s 417(1); one contravention of s 421; and, two contraventions of s 355.

· The third respondent, Mr Sutherland, has seven prior contraventions, namely four contraventions of s 343(1); two contraventions of s 417(1); and, one contravention of s 421.

· The fourth respondent, Mr Bragdon, has seven prior contraventions, namely three contraventions of s 343(1); three contraventions of s 417(1); and one contravention of s 421.

· The fifth respondent, Mr Griffin, has 12 prior contraventions, namely five contraventions of s 343(1); five contraventions of s 417(1); and two contraventions of s 421.

This history and range of conduct in respect of the individual respondents indicates a disregard of provisions of the FW Act on their part.

A key question is to what extent this history on the part of both the CFMMEU and the individual respondents is relevant to the assessment of an appropriate penalty.

The need for specific and general deterrence Both parties accepted that deterrence is the principal object of imposing a civil penalty, but that the penalty imposed must nonetheless be proportionate to the contravening conduct.

In light of the individual respondents' histories of prior contraventions of industrial legislation, the applicant submitted that specific deterrence was an important factor to take into consideration for those respondents. However, the respondents submitted that there was minimal utility in taking into account specific deterrence as a factor in the assessment of penalty in circumstances where there was:

· evidence that Mr Bragdon and Mr Griffin had ceased being organisers with the CFMMEU and had no intention of resuming those roles; and · evidence that Mr Myles, Mr Bragdon and Mr Griffin had ceased to hold right of entry permits.

In my view there is utility in taking into account a requirement for specific deterrence. As I have already observed, all of the individual respondents have a history of prior contraventions of the FW Act. That Mr Bragdon and Mr Griffin had ceased being organisers of the CFMMEU for the present did not mean that there was no prospect of them resuming such roles in future. Similarly, that Mr Myles, Mr Bragdon and Mr Griffin had ceased to hold right of entry permits did not mean that they would not hold them again. To that extent there is the potential for future contraventions of the FW Act by each of the individual respondents. The applicant submitted that courts should be wary of signalling that significant fines can be avoided by changing employment – in my view this submission has merit.

The applicant also submitted that the need for specific deterrence in relation to the CFMMEU was high, referring to the following comments of Flick J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 at [142]:

142. No conclusion is open, with respect, other than that the CFMEU has the financial resources available to it to continue paying all such penalties as may be ordered by this Court and that all such penalties are simply regarded by the CFMEU as an "acceptable cost of doing business"

(see also Australia Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 at [25]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 at [28]-[30] and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 at 481 [102]; [2017] FCAFC 53 at [102].

In relation to the issue of general deterrence, each of the individual respondents held significant positions within the CFMMEU. The CFMMEU, as a corporate entity, could only act through individual persons. A significant penalty would be appropriate to effectively deter other employees of the CFMMEU from engaging in similar behaviour. That Mr Bragdon and Mr Griffin had ceased being organisers of the CFMMEU, or that Mr Myles, Mr Bragdon and Mr Griffin had ceased holding right of entry permits, did not diminish the relevance of general deterrence.

APPROPRIATE PENALTIES – THE INDIVIDUAL RESPONDENTS

Taking all of these considerations into account I now find as follows.

Mr Myles At relevant times Mr Myles was an organiser with the CFMMEU and accordingly an office holder. That, since the contravention, he had ceased to hold a right of entry permit, is in my view irrelevant in respect of deterrence, as there is no reason to conclude he could not in future, again, hold such a permit.

On the evidence before me, Mr Myles displayed no contrition, however I also note his genuine belief that he was acting within his rights. As Rangiah and Charlesworth JJ noted in PIA Mortgage Services Pty Ltd v King (2020) 292 IR 317; [2020] FCAFC 15 at [55], specific and general deterrence does not necessarily require the imposition of a pecuniary penalty where the breach of a provision is not deliberate, but results from an arguable but erroneous misconstruction of an industrial instrument. Like in King, however, the conduct here was deliberate, and could not be described as trivial.

I also do not consider, however, the conduct of Mr Myles as "taking the odds" warranting a finding by the Court that he appreciated the risk of contravention in terms explained by this Court in such cases as Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529 at 598-9; [2003] FCAFC 193 at [308]-[310] and Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 per Rangiah J at [12]-[17]. Although evidence before the Court indicated that Mr Myles was verbally challenged at the time of his entry on to the Site, I am not persuaded that this in itself meant that he appreciated the risk in entering in light of his belief that he was entitled to do so. Indeed, to paraphrase Bromberg J in Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 at [44], notwithstanding that Mr Myles was a union official, he could not be described as a sophisticated actor pursuing commercial purposes knowingly taking a calculated risk based on legal advice.

Having regard to the circumstances of the contravention, it was in the moderate range of seriousness without, in my view, particular aggravating circumstances. Mr Myles has a history of a number of contraventions, however in circumstances where the findings of those contraventions occurred after these proceedings were commenced, I do not consider that inferences can be drawn referable to Mr Myles' attitudes to compliance with the law. The contravention took place over a relatively short period of time. In my view the penalty proportionate to Mr Myles' contravention in the present case is 50% of the maximum, namely $5,100.

Mr Sutherland At relevant times Mr Sutherland was a Crane Co-Ordinator. I understand this to be a supervisory role. On the evidence before me, Mr Sutherland displayed no contrition, however like the circumstances of Mr Myles I also note his genuine belief that he was acting within his rights in entering the site. I have already observed that Mr Sutherland's conduct was in the lower range of seriousness without aggravating circumstances (including, for example, offensive language). Mr Sutherland has a history of a number of contraventions, however in circumstances where the findings of those contraventions occurred after these proceedings were commenced, I do not consider that inferences can be drawn referable to Mr Sutherland's attitudes to compliance with the law. The contravention took place over a relatively short period of time. In my view the penalty proportionate to Mr Sutherland's contravention in the present case is 35% of the maximum, being $3,570 for his contravention.

Mr Bragdon At relevant times Mr Bragdon was an Organiser with the CFMMEU and accordingly a union office holder. Mr Bragdon contravened both ss 417 and 500 of the FW Act on 17 July 2014. He displayed no contrition. However, although Mr Bragdon has a history of a number of contraventions, in circumstances where the findings of those contraventions occurred after these proceedings were commenced, I do not consider that inferences can be drawn referable to Mr Bragdon's attitudes to compliance with the law. I also note that the contraventions occurred over a relatively short period of time.

I have expressed my view of the irrelevance to the assessment of penalty of Mr Bragdon ceasing to be an Organiser with the CFMMEU and ceasing to hold a right of entry permit, in circumstances where he could in future either resume a position as an organiser or resume holding a right of entry permit.

I have expressed the view that Mr Bragdon's contraventions were serious because, although (similarly to Mr Myles) he believed that he had a right to enter the Site, his conduct included organisation of unauthorised industrial actions whilst on the Site. There was however an absence of aggravating factors.

The maximum penalty for each contravention on the part of Mr Bragdon is $10,200. In my view Mr Bragdon's contraventions are at the upper range of the scale of serious offences. The penalty proportionate to Mr Bragdon's contravention is 75% of the maximum, namely $7,650 per contravention.

Section 556 of the FW Act provides as follows:

If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.

Note: A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a pecuniary penalty order in relation to that conduct (see subsection 546(5)).

In Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 Jessup J said in respect of s 556:

40. The better view is that the reference to "particular conduct" in s 556 is to what the person actually did, with all of its attributes and in its whole context. If that conduct gives rise to liability to penalty under two or more provisions, the section is, in my view, engaged. In the present case, the conduct of the workers who took the industrial action attracted liability under s 417(1) and under s 421(1). It is true that, additionally to that conduct, there were adjectival elements the presence of which were necessary ingredients of the provisions respectively, and that these elements differed as between the two (the in-term agreement under s 417(1) and the Commission's order under s 421(1)), but, as it happened, both were in fact present on 31 March 2014 and both gave legal consequences to what the workers actually did. In my view, s 556 would stand in the way of penalties being imposed on the workers themselves under both sections, and the same applies where others, such as the organisers, were deemed to have contravened because of their involvement in that very conduct.

This statement of principle was approved by the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2019) 272 FCR 290; [2019] FCAFC 201 where their Honours said:

26. We respectfully adopt the construction of s 556 applied in The Australian Paper Case. Contrary to the submission advanced on behalf of the respondent and with respect to Jessup J, that construction is not plainly wrong, and in our view it is correct. It accords with the plain meaning of the words by which the section is expressed and also the underlying policy considerations to which we have referred. The "particular conduct" to which s 556 refers is the constituent act or omissions that a wrongdoer has committed – that is, what he or she (or it) actually did.

(emphasis in original) (see also Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) (2020) 274 FCR 19 at 34 [37]; [2020] FCAFC 9 at [37]).

The applicant submitted that s 556 of the FW Act was not relevant to Mr Bragdon's contraventions of ss 417 and 500 of the FW Act because:

· his contraventions had different factual bases – his contravention of s 417 was a result of the stoppage of work, while his contravention of s 500 was a result of his status as a permit holder, his failure to comply with the right of entry requirements and his conduct in causing the stoppage; · there was not necessarily an overlap between the conduct the subject of each penalty – the contravention of s 500 would stand in the absence of the stoppage of work as Mr Bragdon had also been found (at [249] of the Liability Judgment) to have acted improperly in exercising his entry rights; and · the CFMMEU should not be granted the leniency afforded by s 556 of the FW Act.

The respondents submitted that s 556 of the FW Act applied to Mr Bragdon's contraventions of ss 417 and 500 of the FW Act, and the CFMMEU's liability for those contraventions. because:

· the effect of the Court's findings at [246] and [247] of the Liability Judgment was that the conduct which contravened s 417 of the FW Act was "at the heart of" the contravention of s 500; · the applicant conceded that Mr Bragdon's intentional hindrance or obstruction of Watpac, in contravention of s 500 of the FW Act, consisted of organising the stoppage of work and persisting to convene a meeting of workers; · the stoppage of work was, in itself, a contravention of s 417 of the FW Act; and · to "recast" Mr Bragdon's contravention of s 500 of the FW Act as not consisting of the stoppage of work was inconsistent with the Orders made on 24 July 2019 and the case as pleaded by the applicant.

In this case I am satisfied that, although Mr Bragdon contravened two sections of the FW Act on 17 July 2014, those contraventions arose from the same "particular conduct" within the meaning of s 556 of the FW Act. I accept the submission of the respondents that, ultimately, Mr Bragdon's actions which contravened s 417 was at the heart of Mr Bragdon's contravention of s 500, and that Mr Bragdon's actions of that day in entering the Site and organising a workplace stoppage were intertwined. They were certainly coterminous. This is illustrated by Order 4 of 24 July 2019 – being the declaration referable to Mr Bragdon's contravention of s 500 of the FW Act – that the contravention was due to the stoppage of work organised by Mr Bragdon or otherwise failing to give the required notice prior to entry.

The conduct of Mr Bragdon of 17 July 2014 was such that, although the conduct gave rise to multiple contraventions, it should not be the subject of multiple penalties. Section 556 is applicable. Mr Bragdon is only liable to have one penalty of $7,650 imposed on him in respect of that conduct.

Mr Griffin At relevant times Mr Griffin was an Organiser with the CFMMEU, and accordingly a union office holder. Mr Griffin contravened s 500 of the FW Act on two separate occasions, namely 1 July 2014 and 4 July 2014. He displayed no contrition. Although Mr Griffin has a history of a number of contraventions, in circumstances where the findings of those contraventions occurred after these proceedings were commenced I do not consider that inferences can be drawn referable to Mr Griffin's attitudes to compliance with the law.

I have expressed my view of the irrelevance to the assessment of penalty of Mr Griffin ceasing to be an Organiser with the CFMMEU and ceasing to hold a right of entry permit, in circumstances where he could in future either resume a position as an organiser or resume holding a right of entry permit.

Mr Griffin twice engaged in similar conduct contravening s 500 of the FW Act over the space of a few days. However, in neither case were there aggravating circumstances such as offensive language. Further, the contraventions took place over a short period of time.

An important issue arises as to whether Mr Griffin's contraventions constituted a "course of conduct", such that only one penalty should be imposed on him. It is common ground that s 557 of the FW Act does not apply – civil remedy provisions as defined by s 557(2) do not include s 500 of the FW Act.

Relevant principles in respect of course of conduct were discussed by the Full Court in Transport Workers' Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40; [2018] FCAFC 203, including as follows:

90. That there can be one penalty from multiple contraventions was recognised by The Agreed Penalties Case. In some cases it is plain that thousands of contraventions (even if they can be calculated) cannot meaningfully be individually dealt with: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405. Sometimes parties come with an agreed position that one penalty appropriately reflects the penalty for all contraventions. This is not, however, a function of a course of conduct limiting the penalty to one contravention (which the multiple contraventions are not) or limiting the penalty for multiple contraventions to one penalty by reference to one maximum penalty. The task is to evaluate the conduct and its course (called a course of conduct) and assess what penalty is, or penalties are, appropriate for the proven contraventions.

91. Central to the above is the recognition that the imposition of penalties must be informed by the particular legislative provision. Absent the relevant application of a provision such as s 557(1) of the Fair Work Act, the task is to evaluate the considerations informing the contraventions (factual and legal) in order to impose appropriate penal relief that does not punish twice for the same conduct. To use a phrase such as "a course of conduct" may imply that there is such an abstracted concept to be found, and once found it implies a single contravention or a single maximum penalty. That is the danger of the phrase. Rather, it is necessary (in the absence of a statutory enquiry such as in s 557(1)) to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penal orders, in particular to avoid double punishment. We see nothing in Williams or The Agreed Penalties Case that was intended to displace the need to consider the statute in question and to recognise that the object of the course of conduct principle is to avoid double punishment.

(emphasis added) Subsequently, in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262; [2019] FCAFC 59 Rangiah J (with whom Allsop CJ and Griffiths J agreed) relevantly observed:

123. The course of conduct (or one transaction) principle under the general law has been stated in a variety of ways. A useful exposition of the principle was given by Owen JA in Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 at 328 [22]:

... At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.

(emphasis added) (see also Fair Work Ombudsman v Construction, Forestry, Mining, Maritime and Energy Union (The Hutchinson Ports Appeal) [2019] FCAFC 69 at [181] per Rangiah J).

The applicant submitted that common law course of conduct principles are not relevant to Mr Griffin's contraventions because:

· his contraventions could not be said to stem from the same conduct; · Mr Griffin entered the Site on two separate occasions, three days apart; · his offending was constituted by separate and distinct acts; and · as separate entries on separate days, they should be treated as separate.

In my view the contraventions on the part of Mr Griffin should not be treated as a common course of conduct. On 1 July 2014, Mr Griffin attended the Site motivated by work health and safety concerns referable to events of the previous week at the Site. His attendance of 4 July 2014 was however to "follow up" his previous visit of several days before hand. While the visits were connected, they nonetheless were separate and distinct acts, with differences in motivation. I am not persuaded that the two visits by Mr Griffin were, in substance, the same conduct. They were two separate acts, each attracting a penalty.

In my view the appropriate penalties for each contravention in the present case, proportionate to Mr Griffin's contraventions and taking into account the object of deterrence, is 35% of the maximum, being $3,570 for each contravention.

APPROPRIATE PENALTIES - THE CFMMEU

Pursuant to either s 793 or s 550 of the FW Act, the CFMMEU was liable for the contraventions of ss 417 and 500 by the individual respondents. I now turn to the appropriate penalties to be imposed on the CFMMEU. In doing so, two issues immediately arise, namely the relevance of the CFMMEU's history in respect of contraventions of (inter alia) the FW Act, and the application of the totality principle.

History of contraventions and the Pattinson case The applicant submitted that, in relation to the CFMMEU, the maximum penalty available for each contravention was appropriate, particularly in light of the union's history of contravention. The applicant points to comments such as those of Tracey J in The Broadway on Ann Case at [17]-[27]:

17. Over recent years I have become increasingly concerned about the ongoing misconduct of the CFMEU and its officials and the implications of this conduct when penalties are being determined. These misgivings have been expressed in a series of judgments.

18. In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 407, I made the following comments:

19. In Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1213 at [63] I said that:

The longer such recidivism continues the more likely it is that this consideration will carry greater weight than the principle that the maximum available penalty must be reserved for the worst possible offending.

20. More recently, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 at [32], I observed that:

Having regard to the history of offending by the CFMEU to which I have referred, it may be doubted that any penalty falling within the available range for contraventions of the kind presently under consideration would be "sufficiently high to deter repetition". Any penalty will be paid and treated as a necessary cost of enforcing the CFMEU's demand that all workers on certain classes of construction sites be union members.

21. Again, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2017] FCA 1555 at [53], I said:

In Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 at [63] I observed that the longer that the CFMEU's recidivism continued, the greater the weight which would be accorded to specific deterrence when fixing appropriate penalties.

22. Such comments (and many others to like effect by other members of the Court and the Federal Circuit Court) over recent years have appeared in published judgments and must be taken to be well known to the officials who constitute the governing councils of the CFMEU. In many of these cases penalties have been imposed because of the failure of CFMEU officials who hold entry permits under the Act to comply with the requirements of Part 3–4 of the FW Act. They have also involved contraventions of s 500 of the FW Act in the course of these site entries.

23. The contravening conduct has continued unabated to a point where there is an irresistible inference that the CFMEU has determined that its officials will not comply with the requirements of the FW Act with which it disagrees. If this results in civil penalties being imposed they will be paid and treated as a cost of the union pursuing its industrial ends. The union simply regards itself as free to disobey the law.

24. The Court will not, lightly, decide to impose the maximum available penalty. Each case must be considered on its merits and in a principled manner.

25. The features of the present case and the context in which they arise, which, in my view, warrant the imposition of the maximum available penalties on the CFMEU, are:

• The many decisions of the Court over the past 15 years in which the CFMEU has been found liable and penalised for failures to comply with entry requirements on building sites and for the misconduct of its officials whilst exercising rights of entry on those sites.

• The failure of the CFMEU to respond to these repeated findings by acknowledging error and implementing remedial measures.

• The absence of any contrition for the earlier offending.

• The absence of any contrition for the present offending.

• The ongoing willingness of the CFMEU to pay the pecuniary penalties imposed by the Court by drawing on its considerable financial resources.

• The fact that it was a State Divisional President of the CFMEU who was found to have engaged in multiple contraventions on the site.

• The blatant and public assertion by such a senior official that he would not comply with the notice requirements imposed by the FW Act.

26. The absence of contrition does not justify the imposition of a higher penalty than might otherwise be appropriate. It is, however, relevant, in considering the extent of the CFMEU's recidivism.

27. These considerations combine, in my view, to emphasise the objective seriousness of the CFMEU's conduct, acting through its officials. They bespeak deliberate abuse of the CFMEU's privileged position as a registered organisation in the Federal industrial relations system. They emphasise the need for general and specific deterrence to weigh most heavily in the process of instinctive synthesis in which the Court engages when determining civil penalties. They warrant the imposition of the penalties proposed by Logan J.

Justice Logan, in the same case, observed at [87]:

87. Approaching the subject of penalisation afresh and for all of the reasons given, I consider that the maximum penalty in respect of each contravention is warranted in the circumstances of this case. Being of this view, I have, in deference to the totality principle, asked myself whether, in total, such an overall penalty would be a disproportionate response in the overall circumstances of the case? So recalcitrant is the contravening conduct charged having regard to the past history in the tabulation and such is the importance of deterrence and compelling conformity with the requirements of the FWA my view is that only the most condign penalisation of a cumulative maximum punishment is warranted in the circumstances of this case. I would impose that so as to bring home emphatically to the CFMEU that, in its internal governance, it must force systemic behavioural change upon its Construction Division.

However, both comments of their Honours, and the submissions of the applicant, need to be viewed in light of the recent decision of the Full Court in Pattinson, where a five-member Full Court returned to general principles of the imposition of civil penalties, including the decision in The Broadway on Ann Case, and further examined the question whether a contravenor's history of contraventions could be taken into account in assessing the gravity of the contravention. At [25] the plurality of Allsop CJ, White and Wigney JJ referred to the reasons for judgment of French CJ, Kiefel, Bell, Nettle and Gordon JJ in the Agreed Penalties Case and continued:

25. …There, in distinguishing the proper approach to the determination of civil penalties from sentencing under the criminal law, and in particular the lack of relevance of Barbaro v The Queen [2014] HCA 2; 253 CLR 58 to the process of the imposition of civil penalties, their Honours adopted what had been said by the Chief Justice when a judge of this Court in Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076 at 52,152, to the effect that the principal, if not only, object of penalties was "to deter repetition by the contravenor and by others who might be tempted to contravene the Act"...

Notwithstanding this principle, as the Full Court noted, the High Court has repeatedly reiterated the basic principle of sentencing law that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (see for example Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; [1988] HCA 14; Hoare v The Queen (1989) 167 CLR 348 at 354; [1989] HCA 33; Baumer v The Queen (1988) 166 CLR 51 at 57-58; [1988] HCA 67; Chester v The Queen (1988) 165 CLR 611 at 618; [1988] HCA 62; Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54; Magaming v The Queen (2013) 252 CLR 381 at 397; [2013] HCA 40 at [51]). The Full Court at [71] in Pattinson further referred to the discussion of the Court of Appeal of New South Wales in Gilshenan v The Queen [2019] NSWCCA 313 at [60], where their Honours explained the interaction between principles of proportionality and deterrence in the following terms:

The principles in Veen v The Queen (No. 2) and Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at [13]-[14] have been taken to establish that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence which circumstances do not encompass prior convictions: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [24]. However, as was said in Veen v The Queen (No. 2), an antecedent criminal history is not relevant only to an offender's claim of leniency. If an offender manifests in the commission of the offences for which sentence is to be passed "a continuing attitude of disobedience of the law", then "retribution, deterrence and protection of society" play a part on sentence, although not in a manner which allows imposition of a sentence which is disproportionate to the objective gravity of the offences.

Notwithstanding conflicting authorities to which the plurality in Pattinson referred, their Honours found at [90] that 90. … even if prior convictions can be taken into account in assessing the gravity or seriousness of the offending, the sentence is set by reference to all the circumstances, including the outward objective circumstances of the commission of the offence: that is, what happened. Thus prior convictions cannot distort the sentence to that which is disproportionate in the light of such objective circumstances of the offending (as opposed to the offender)… Their Honours noted the importance of proportionality in the imposition of appropriate civil penalties, and the distinction between the civil and criminal laws in this respect (at [107]). As their Honours continued:

107. … It is part of the "balance" between the "insistence upon the deterrent quality of the penalty" and the "insistence" that the penalty not be greater than is necessary to achieve the object of deterrence, for such would not be deterrence but "oppression": see NW Frozen Foods 71 FCR at 293 ([96] above)… In conducting the balancing exercise involving appropriate deterrence and appropriate proportionality, the plurality in Pattinson noted at [108] that the demonstrated willingness (and its degree or strength) of a contravenor to disobey the law (however that is derived admissibly) is or must be of significance to the assessment of what is reasonably appropriate in order to deter and within that task to what is proportionate. Their Honours continued:

108. … There is not more than one task called for by the statute. If we may respectfully adopt at this point what was said by Charlesworth J in Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; 241 FCR 338 at 351 [66]–[69] in a case after the Agreed Penalties Case (HC):

66. Once it is accepted that civil penalties are not retributive, concepts of proportionality should not be applied for the purposes of serving broader objectives of punishment in the sense described in R v Hunter (1984) 36 SASR 101 at 103 (King CJ) (applied by Lander J in Ponzio (at [93])):

The basic concepts of justice which underlie the criminal law require that the punishment be fairly proportionate to the crime in accordance with the prevailing standards of punishment. Only when it meets that criterion can a sentence satisfy the sense of justice of the community which is expected in the criminal law and in the practice of the courts in applying the criminal law.

67. Proportionality is nonetheless a critical objective in exercising the discretion conferred by s 546 of the FW Act. That is because the degree of seriousness of a contravention is relevant to ascertain "the assessment of a penalty of appropriate deterrent value": CSR at [42]. A penalty of appropriate deterrent value is one that recognises that the maximum penalties prescribed in the statute are appropriately imposed in cases where the need for deterrence is the most pronounced. There remains, in addition, a discretion not to impose a penalty at all if the statutory purpose of deterrence would not be served by the imposition of one.

68. The seriousness of the conduct constituting the contravention is an important indicator of the need for deterrence in a particular case, but is not the sole indicator. Consistent with the reasoning of French J (as he then was) in CSR, in all cases it is proportionality in relation to the need for deterrence that must be achieved, having regard to all relevant circumstances, including the objective seriousness of the contravention before the Court.

69. It should also be recognised that penalties fixed for a deterrent purpose are intended to have an attitudinal effect: dissuasion. It is for this reason that any assessment of the seriousness of the conduct of the respondents places appropriate emphasis on the mental attitudes accompanying their physical acts.

(Emphasis in original.) It follows that proportionality is a relevant factor in considering and fixing appropriate civil penalties for a contravention with the object of deterrence, however such factors as retribution, denunciation and rehabilitation are not (see Pattinson at [109]). To adopt the language of their Honours in Pattinson at [109]:

· the process is whole and discretionary, and evaluative in character, to which objective aspects of the contravention and the subjective characteristics of the contravenor informing deterrence are relevant; and · the mental attitude of the contravenor is relevant.

The majority in Pattinson also examined the reasoning of the majority in The Broadway on Ann Case, in particular the observations of the majority in that case concerning the approach of the CFMMEU to compliance with the law. Allsop CJ and White and Wigney JJ observed at [134]:

134. Whilst [17]–[22] may perhaps express no more (in different, and perhaps stronger language) than was said by the Full Court in the Queensland Infrastructure Case at 254 FCR 101–103 [158]–[165] (see [112] above), the expression of the matter in [23] as an inference, expressed apparently in respect of any and all of the union's officials, in any and all of its branches, to any and all relevant provisions of relevant legislation, has the capacity to appear to express a binding feature of the circumstances of any particular future case. The danger is that the strength of the language and the characterisation of the past becomes seen and applied as almost irrefutable factual conclusions, conclusively drawn, by a judge on appeal, applicable to any and all future factual circumstances. This risks distorting the proper judicial task of fixing an appropriate penalty for the contravention in question taking account of all relevant circumstances attending the contravention, including material that reflects any attitude to disobedience to the provision, and the maximum penalty, all in aid of the objective of deterrence of a contravention of the kind before the court. The practical consequences of this danger to judges imposing civil penalties can be seen in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268, which is discussed below.

In respect of the findings of the majority in The Broadway on Ann Case, their Honours in Pattinson concluded:

149. Before turning to the dissenting judgment of Bromwich J, the following can be said to be clear from the reasons of Logan J (and thus also Tracey J) in point of expression of legal principle: The primary object of the imposition of a civil penalty is deterrence; in accordance with Veen (No 2) (which was treated as relevant and binding) the antecedent contravention history is relevant to understanding an attitude of disobedience and as such the seriousness of the contravention that is before the court and the appropriate deterrence called for in the imposition of the penalty; the penalty to be imposed is to deter a repetition of a contravention of the kind before the court; and the maximum penalty is for contravention of the kind (in its gravity and seriousness, including by reference to what antecedent contraventions show of a wilfulness to disobey the law) calling for, that is warranting, the most serious penalty by way of deterrence. With respect, such expression of principle is orthodox.

Finally, their Honours also referred to Full Court authorities after The Broadway on Ann Case, and followed observations of the Full Court in Parker (2019) 270 FCR 39; [2019] FCAFC 56 including:

339. As to the second consideration, being the use that was put by the primary judge to prior contraventions, especially in respect of the CFMEU, a court imposing a civil penalty is entitled to have regard to such prior contraventions in the exercise of the discretion, but that does not permit such a history to be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the contravention that is being considered: Veen (No 2) at 477. That is because a court should impose a penalty that is proportionate to the gravity of the contravention being sanctioned, and no more… … 341. Thus, the role of any past contraventions is to be no more than a prism through which to view the instant contravention. This enables a court to assess whether, for example, the instant contravention is an "uncharacteristic aberration", or whether the contravener has, by the instant conduct, manifested "a continuing attitude of disobedience of the law". If the latter, as is clearly available to be concluded in this case, the heightened need for deterrence may indicate that a more severe penalty is warranted for the instant contravention. Nonetheless, that penalty must still fall within the applicable range that is otherwise considered appropriate for that contravention. If that is not carefully observed, the contravener may suffer the fate of being sanctioned anew for past contraventions, as the above quote from Veen (No 2) makes clear is not permitted.

342. Veen (No 2) also provides valuable guidance as to the role of the maximum penalty. The High Court's observations at 478 make it clear that the maximum penalty is reserved for contraventions falling within the worst category of cases for which that penalty is prescribed. This does not require characterisation as the worst possible case. However, a case is not in the worst category merely by reason that the contravener has a history of prior contraventions, although that history may assist in the proper characterisation of the instant contravention. Considerable caution may be required to avoid blurring this distinction. This is especially so when, as in this case, past contraventions are many in number, extend over a protracted period of time and the legislature has not seen fit to provide greater penalties for second and subsequent contraventions.

The majority in Pattinson concluded that whilst retribution had no place in respect of the assessment of a penalty with the primary object of deterrence, nonetheless the assessment of the character of the contravention includes all factors that can rationally go to its gravity and seriousness, including an attitude of displayed and continuing disobedience to the law, as part of a characterisation of the nature and character of what was done (at [191]).

I note that the minority Judges in Pattinson, Besanko and Bromwich JJ, agreed with the majority. Their Honours also observed:

230. Rather, as we endeavoured to explain in Parker at [341]–[342] and [348], and as Wheelahan J correctly recognised in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 at [96], in properly applying Veen No 2, prior contravening history may be able to be demonstrated to be relevant to an assessment of the seriousness or gravity of the instant contravening conduct. However, neither that history, nor the object of deterrence, can result in a penalty that is disproportionate to contravening conduct itself, having regard to the maximum penalty. That is, prior contraventions may be illuminating in properly characterising what has happened, including the extent of the need for deterrence. This may in turn assist in determining both the appropriate range within which a penalty may be imposed, and in determining where within that range the penalty to be imposed should fall.

231. The proper role of relevant prior contraventions is therefore in assisting with better understanding what has taken place and how it should be assessed. This can include having regard to how that history informs the need for deterrence in the context of the maximum penalty, but falls short of changing what has happened in the instant case because the effect of taking that additional step would be to penalise again for what has happened in the past. This is the subtle but fundamental difference between characterising what has happened, which is conventional and permissible, and changing the character of what has happened, which is impermissible because it has the effect of at least in part imposing a penalty for what has been sanctioned previously. It is the injustice of the latter approach that is precluded by the principle of proportionality identified in Veen No 2. The contrary conclusion that imposing a disproportionate civil penalty in this sense is permissible is a matter only for the High Court to decide or for the legislature to enact.

In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105 Rangiah J helpfully summarised the findings of the plurality in Pattinson as follows:

29. The effect of Pattinson is that the Union's recidivism is a factor to be taken into account in assessing the level of penalty that is reasonably necessary to deter similar offending, but does not of itself require assessment of a penalty at the highest level. It is necessary to take into account all the circumstances that bear upon the character and seriousness of the contravention before the Court.

Taking these principles into account, I observe as follows. The CFMMEU's liability arises as a result of the individual respondents' acts. The maximum penalty which could be imposed on the CFMMEU for each contravention is $51,000. However, the penalties imposed on the CFMMEU should be reflective of the penalties imposed on the individual respondents. The CFMMEU's prior history of contraventions might warrant the penalty being increased to the upper range of what is appropriate for the relevant individual respondents' contravention, but the prior history cannot lead to a penalty that is disproportionate to the seriousness of the individual respondent's contravention: Veen v The Queen (No 2) at 477.

Taking these principles into account, but also noting that there is a significant case for deterrence in respect of a large and well-resourced union which has displayed no contrition and whose officials contravene the law, I consider the appropriate penalties to be imposed on the CFMMEU are as follows.

In relation to the contravention of s 500 of the FW Act arising from the conduct of Mr Myles on 27 June 2014, I consider that a penalty of 55% of the maximum is appropriate and proportionate. The penalty is accordingly $28,050.

In relation to the contravention of s 500 of the FW Act arising from the conduct of Mr Sutherland on 7 July 2014, I consider that a penalty of 40% of the maximum is appropriate and proportionate. The penalty is accordingly $20,400.

In relation to the contraventions of s 417 and s 500 of the FW Act arising from the conduct of Mr Bragdon on 17 July 2014, I consider that one penalty referable to both contraventions, being 80% of the maximum is appropriate and proportionate. The penalty is accordingly $40,800.

In relation to the contravention of s 500 of the FW Act arising from the conduct of Mr Griffin on 1 July 2014, I consider that a penalty of 40% of the maximum is appropriate and proportionate. The penalty is accordingly $20,400.

In relation to the contravention of s 500 of the FW Act arising from the conduct of Mr Griffin on 4 July 2014, I consider that a penalty of 40% of the maximum is appropriate and proportionate. The penalty is accordingly $20,400.

Totality The totality principle operates as a final check to ensure that the overall penalty is appropriate for the conduct in question, and not excessive. The Full Court explained the principle in the following terms in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113:

116. The totality principle, like the course of conduct principle, has its origins in criminal sentencing. The totality principle was described in the following terms in the frequently cited passage from the judgment of the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63:

The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):

"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'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

117. The totality principle is sometimes confused or conflated with the course of conduct principle. That is perhaps not surprising because application of the totality principle may again result in a court adjusting what would otherwise have been consecutive or cumulative sentences to sentences that are wholly or partially concurrent. The proper approach, however, is to first consider the course of conduct principle and determine whether the sentences should be consecutive, or wholly or partly concurrent. Once that is done, the Court should then review the aggregate sentence to ensure that it is just and appropriate. That may require a further adjustment of the sentences: either by ordering further concurrency or, if appropriate, lowering the individual sentences below what would otherwise be appropriate.

The combined penalties I have set out in respect of the CFMMEU total $130,050. In my view this total penalty is just and appropriate, and there ought be no reduction in application of the totality principle. I take this view for the following reasons, including:

· The total penalty reflects contravening conduct by four officials of the CFMMEU.

· While individually of relatively short duration, the conduct of those officials took place over several weeks causing disruptions to work on the Site over that period.

· Notwithstanding the absence of evidence of loss or damage resulting from these disruptions, it is likely that the stoppage of work and attention required by management on the Sites translated into loss.

· On at least one of the occasions in which the official improperly entered the Site, the issue allegedly causing the CFMMEU concern was a canard (at [247] of the Liability Judgment).

· The conduct of the individual respondents included not only unlawful entry, but (in the case of Mr Bragdon) organisation of unauthorised industrial actions whilst on the Site.

· The CFMMEU is a large and well-resourced organisation with real power and influence in the building industry (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 102 [162]; [2017] FCAFC 113 at [162]).

· The absence of contrition or corrective conduct on the part of the CFMMEU supports the imposition of penalties which will be a meaningful deterrent to future conduct of this nature.

· I do not consider the size of the penalty oppressive, nor manifestly excessive in the circumstances.

PERSONAL PAYMENT ORDERS

Finally, in respect of the individual respondents, the applicant also seeks personal payment orders, on the basis of:

· deterrence, both general and specific, would not be achieved in the absence of such an order; · the absence of contrition or evidence of a change in approach; · the deliberate and serious nature of the conduct of the individual respondents; · the history of the CFMMEU, through its officials, reflects a willingness to contravene the law and pay the penalties as a cost of its approach to industrial relations; and · the history of contraventions of the individual respondents in their roles as officials of the CFMMEU.

In summary, the applicant submitted:

· The power of the Court to grant a personal payment order was enlivened under s 546 of the FW Act because, in the amended originating application, the applicant sought such further or other orders as the Court considered appropriate.

· Keane, Nettle and Gordon JJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at 195 [162]; [2018] HCA 3 at [115] relevantly observed that the express conferral of power in s 546 of the FW Act to make an order that a person pay a pecuniary penalty gave rise to an implied power to make other orders which were necessary or facilitative of the types of orders expressly provided, and that included power to make an order that a contravenor pay a pecuniary penalty personally.

· Notwithstanding the absence of a specific pleading on the part of the applicant seeking personal payment orders, there was no demonstrated injustice to the respondents if the Court entertained the application for, and made such an order.

· There was no evidence before the Court that the respondents would have conducted their case differently had the amended originating application included such an order.

· In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 and Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 the Court made personal payment orders notwithstanding that those orders had only been sought in submissions on penalty.

· The seriousness of the conduct was not at the lower end of the scale, particularly on the part of Mr Bragdon.

· The conduct the subject of the proceedings was wilful and continued disobedience of the FW Act.

· It is important that individuals who act for the CFMMEU feel the "sting" of penalties when they engage in non-compliant behaviour.

· No contrition or change in approach was evident from the individual respondents or the CFMMEU.

· There was an extensive history of contravention by the CFMMEU, and a history of contraventions by the individual respondents.

· A need for deterrence was clear in this case.

In summary the respondents submitted:

· The power of the Court under s 546 is enlivened only on "application". No application for personal payment orders had been made.

· The observations of Keane, Nettle and Gordon JJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at 195; [2018] HCA 3 at [115] made clear that a personal payment order is not a component of a penalty order, but a separate and distinct form of relief.

· The relief prayed for in a proceeding is of as much importance to a respondent as the allegations on which the prayer is based, and a change in the relief sought may be material to a respondent: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286; [1990] HCA 11. If the applicant sought non-indemnification orders, it must seek leave to amend his application to do so: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCCA 3261 at [21].

· The conduct giving rise to the contraventions in this case was at the lower end of the scale for seriousness.

· Contraventions of pecuniary penalty provisions of the FW Act by officials did not automatically mean that personal payment orders should be made: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 at [66]-[67].

The applicant relied on recent findings of Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Maratime, Mining and Energy Union (Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 where his Honour made a personal payment order, relevantly finding:

92. Consistently with the approach taken by the Full Court in the Non-Indemnification Personal Payment Case, I would infer that the history of prior contraventions by the CFMMEU through the Divisional Branch is demonstrative of an underlying willingness to pay pecuniary penalties imposed upon its officials in relation to the industrial conduct of those officials taken in the course of their employments. The CFMMEU did not resist the inference that the Commissioner sought be drawn against it. Consistently with the existence of such a policy and supportive of its long-standing and systemic nature, the respondent acknowledged that the pecuniary penalty imposed on MacDonald in 2013 for his prior contraventions of s 38 of the BCII Act were not personally paid by him. Likewise, a penalty of $6,400 imposed upon Long for a contravention of s 417 of the FW Act (which post-dated the instant contraventions) was also acknowledged as not personally paid by Long.

93. The systemic willingness of the CFMMEU, through the Divisional Branch, to support the unlawful conduct of the officials of the Divisional Branch by paying the pecuniary penalties imposed upon them demonstrates that it is likely that officials of the Divisional Branch will not personally pay for penalties imposed for their contraventions. But that is not all. It also demonstrates that there will be no condemnation or other detrimental consequence inflicted upon those officials by the Divisional Branch.

94. As in the Non-Indemnification Personal Payment Case, the Court is confronted with circumstances which are apt to be characterised as unique. Those circumstances warrant an effective response. The unique circumstances demonstrate that it is likely that, in the absence of a personal payment order, MacDonald and Long will not feel the sting or experience the burden of any pecuniary penalty imposed upon them. To accomplish the intended sting and burden, I consider that personal payment orders should be made in relation to each of the pecuniary penalties I intend to impose on MacDonald and Long.

Recently however in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105 Rangiah J had cause to consider an application for a personal penalty order in similar circumstances to those before me, namely where no application for a personal penalty order was originally made. His Honour relevantly observed:

59. The Commissioner seeks the making of a personal payment order against Mr Harradine. The respondents oppose such an order on the basis that, first, no such order has been sought in the Originating Application and, second, it is not an appropriate order in the circumstances of the case.

… 62. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, the High Court held that there is an implied power under s 546 of the FW Act to order that a union official not seek or accept indemnity or contribution from the union in respect of a pecuniary penalty imposed upon the union official. The plurality, at [114], described such orders as "legally ancillary to" the accomplishment of the specific remedy of pecuniary penalties. The Commissioner may be submitting that, by this description, the plurality was suggesting that such an order is of lesser significance or consequence than the order imposing penalty, so that the Court should conclude that it is unnecessary to include a claim for such an order in an originating application. If that is the submission, it cannot be accepted. A non-indemnification order has serious practical and legal consequences. The plurality at [114] described such an order as "a penal order". The legal consequences for its contravention may include punishment for contempt of Court.

63. Rule 8.01(1) of the Federal Court Rules 2011 (Cth) provides that a person who wants to start a proceeding in the Court's original jurisdiction must file an originating application. Rule 8.03(1) provides that an originating application must state the relief claimed and, more specifically, r 8.03(2) provides that an originating application seeking an injunction must state the order sought.

64. The form of the personal payment order sought would prohibit Mr Harradine from seeking from, or encouraging, the Union to pay him any money or benefit referable to the penalties, and from accepting any such payment or benefit from the Union. The order is in the nature of an injunction. Accordingly, if a personal payment order is sought, rr 8.03(1) and (2) require that the originating application set out that relief. No basis has been demonstrated for departure from the Federal Court Rules. It follows that the Commissioner requires leave to amend the Originating Application to seek a personal payment order against Mr Harradine.

65. The parties conducted the proceeding on the basis that the questions of contravention of ss 46(1) and 54 of the BCI Act would be determined before determination of any penalties. The application for amendment of the Originating Application has been brought after the determination of contravention, at a very late stage. The explanation for the delay seems to be either that it was not thought of, or was thought not to be necessary.

66. One of the functions of pleadings is to state with sufficient clarity the case that must be met and, in that way, to serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. Similarly, a purpose of rr 8.03(1) and (2) of the Federal Court Rules must be to provide procedural fairness to respondents by informing them of the orders that the Court is being asked to make against them. The Originating Application fails to fulfil that purpose in relation to the personal payment order that is now proposed.

67. I do not accept the Commissioner's submission that Mr Harradine ought to have been aware that a personal payment order may have been sought against him because such orders have been sought and made in other recent cases. It was the Commissioner's obligation to notify Mr Harradine through the Originating Application of the orders that were being sought against him. It was not for Mr Harradine to have to guess as to what other orders might be sought.

68. I do not accept the Commissioner's submission that no prejudice would be caused to Mr Harradine by reason of the amendment. Mr Harradine's conduct occurred in the course of his employment and, ordinarily, the Union could be expected to indemnify him against payment of the penalty. The purpose of a personal payment order would be to deter Mr Harradine from future contraventions by requiring him to pay the penalty using his own finances. A personal payment order would create significant financial consequences for Mr Harradine.

69. If the Originating Application had stated from the outset that a personal payment order was being sought, it may have influenced the course that Mr Harradine took in relation to the conduct of the proceedings. He may, for example, have admitted the contraventions, or made further admissions as to the factual circumstances, so as to limit the quantum of any pecuniary penalty imposed upon him. I am satisfied that Mr Harradine has at least been deprived of the opportunity to consider the alternative courses open to him by reason of the Commissioner's failure to seek the personal payment order against him prior to the determination of the contravention issues.

70. In these circumstances, it would not be just to allow the Commissioner to amend the Originating Application at this late stage to seek a personal payment order against Mr Harradine. I reject the application for amendment. I decline to make any personal payment order against Mr Harradine.

I respectfully adopt the approach taken by Rangiah J.

The CFMMEU has a substantial record of non-compliance with the law. However, whilst having been the subject of findings of contraventions, it cannot be said that the individual respondents have an equivalent long and substantial record of non-compliance such that the "sting" of a personal payment order is warranted. In so observing, I particularly note relevant observations of Tracy J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 at [67].

Further, overall I do not consider the conduct of the individual respondents to be at the upper end of the scale of seriousness.

In circumstances where the individual respondents were not put on notice of the prospect of a personal payment order until after liability was established, there is a substantive possibility of denial of justice to them, including in respect of the manner in which they would have conducted their respective cases, should I make an order in the terms now sought by the applicant.

It follows that I am not prepared to make personal payment orders in the terms sought by the applicant.

I certify that the preceding one hundred and thirteen (113) numbered paragraph are a true copy of the Reasons for Judgment of the Honourable Justice Collier. Associate:

Dated: 23 March 2021 SCHEDULE OF PARTIES QUD 388 of 2016 Respondents Fourth Respondent:

CHAD BRAGDON

Fifth Respondent:

KEVIN GRIFFIN

Sixth Respondent:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION