Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union [2011] FCA 810 (21 July 2011) Last Updated: 25 July 2011 FEDERAL COURT OF AUSTRALIA Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union [2011] FCA 810 Citation: Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union [2011] FCA 810 Parties: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, JOSEPH MCDONALD and MICHAEL BUCHAN File number: WAD 106 of 2009 Judge: GILMOUR J Date of judgment: 21 July 2011 Catchwords: INDUSTRIAL LAW – penalties – agreement between applicant and respondent on amount of penalty – whether within permissible range – factors to be considered – object of statute – whether other relevant contraventions are to be taken into account – totality principle COMPENSATION – whether actual damages suffered by conduct of another person as a result of the contravention – causation – object of statute – whether mitigation of losses. Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 3 , 4 (1), 5 , 36 , 38 , 43 , 49 (1), 69 Fair Work (Registered Organisations) Act 2009 (Cth) s 512 Workplace Relations Act 1996 (Cth) ss 170MN, 770 , 740 Fair Work Act 2009 (Cth) s 512 Crimes Act 1914 (Cth) s 4AA(1) Federal Court of Australia Act 1976 (Cth) ss 21 Trade Practices Act 1974 (Cth) s 82 Industrial Relations Act 1979 (WA) Cases cited: A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Alfred v Construction, Forestry, Mining and Energy Union (No 1) [2011] FCA 556 Attorney-General v Tichy (1982) 30 SASR 84 Australian Building & Construction Commissioner v Construction Forestry Mining & Energy Union (No 2) (City Square) (2010) 199 IR 373 Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (2009) 189 IR 165 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 Australian Federation of Air Pilots v Skywest Airlines Pty Ltd (1996) 70 IR 284 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 Cahill v Construction, Forestry, Mining and Energy Union (No 4) (2009) 189 IR 304 Chappel v Hart (1998) 195 CLR 232 Construction Forestry Mining & Energy Union v Hamberger [2003] FCAFC 38 ; (2003) 127 FCR 309 Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Cruse v Construction, Forestry, Mining and Energy Union (2009) 182 IR 60 Darlaston v Parker (No 2) (2010) 200 IR 353 Darlaston v Parker (No 2) (2010) 200 IR 353 Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145 Finance Sector Union of Australia v Commonwealth Bank of Australia [2005] FCA 1847 ; (2005) 224 ALR 467 Gray v Sirtex Medical Limited [2011] FCAFC 40 ; (2011) 276 ALR 267 Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 Imperial Chemical Industries of Australia and New Zealand Ltd v Murphy (1973) 47 ALJR 122 Johnson v R [2004] HCA 15 ; (2004) 205 ALR 346 Lee v McDonald [2006] WAIRComm 4220 Lee v McDonald and Buchan [2004] WAIC 12071 Leighton Contractors Pty Ltd v Construction Forestry Mining & Energy Union (No 4) (2006) 164 IR 375 March v E & MH Stramare Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506 Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 McCarthy v McIntyre [1999] FCA 784 McDonald v The Queen [1994] FCA 956 ; (1994) 48 FCR 555 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 204 ALR 26 NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission [1996] FCA 1134 ; (1996) 141 ALR 640 Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170 ; (2008) 171 FCR 357 Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 R v Gordon (1994) 71 A Crim R 459 R v McInerney (1986) 42 SASR 111 Radisich v Buchan [2008] AIRC 896 Stuart-Mahoney v Construction Forestry Mining & Energy Union (2008) 177 IR 61 Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169 Travel Compensation Fund v Tambree [2005] HCA 69 ; (2005) 224 CLR 627 Veen v The Queen (No 2) [1988] HCA 14 ; (1988) 164 CLR 465 Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 196 IR 365 Williams v Construction, Forestry, Mining and Energy Union (No 2) (2009) 182 IR 327 Wilson v McDonald [2009] WASCA 39 ; (2009) 253 ALR 560 Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 Zaknich v McDonald [2000] WASC 151 Date of hearing: 4 February 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 217 Counsel for the Applicant: Mr R Dalgleish Solicitor for the Applicant: Clayton Utz Counsel for the First, Second & Third Respondents: Ms Karen Vernon Solicitor for the First, Second & Third Respondents: Slater & Gordon IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 106 of 2009 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent JOSEPH MCDONALD Second Respondent MICHAEL BUCHAN Third Respondent JUDGE: GILMOUR J DATE OF ORDER: 21 JULY 2011 WHERE MADE: PERTH THE COURT ORDERS THAT: The first respondent pay a penalty of $120,000. The second respondent pay a penalty of $17,000. The third respondent pay a penalty of $13,000. Pursuant to s 49(5) of the Building and Construction Industry Improvement Act 2005 (Cth), the penalties set out in paragraphs 1-3 above are to be paid to the Commonwealth. Such payment is to be made within 90 days of the date of this order. The first respondent pay Diploma Constructions (WA) Pty Ltd compensation in the sum of $97,695.41. The first respondent pay to Diploma Constructions (WA) Pty Ltd interest on this sum for a period and at a rate to be agreed between the applicant and the first respondent and failing such agreement within 14 days hereof those parties have liberty to apply as to the amount of interest to be paid. The respondents pay the applicants costs of the proceeding in relation to the issue of the payment of penalties to be taxed if not agreed. The first respondent pay the costs of the applicant of the proceedings in relation to the issue of compensation to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 106 of 2009 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent JOSEPH MCDONALD Second Respondent MICHAEL BUCHAN Third Respondent JUDGE: GILMOUR J DATE: 21 JULY 2011 PLACE: PERTH REASONS FOR JUDGMENT Introduction The applicant is a person eligible to bring proceedings for a contravention of a civil penalty provision in the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) pursuant to s 49(6) of the BCII Act. The first respondent the Construction, Forestry, Mining and Energy Union (CFMEU), is and was at all material times: (a) an organisation registered or taken to be registered pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth); (b) a body corporate capable of being sued in its registered name; (c) a building association within the meaning of s 4(1) of the BCII Act; and (d) an industrial association within the meaning of that term in s 4(1) of the BCII Act. The second respondent (McDonald) is and was at all material times: (a) an Assistant Secretary of the CFMEU’s Construction and General Division, Western Australian Divisional Branch; and (b) an officer of the CFMEU acting in that capacity. The third respondent (Buchan) is and was at all material times an organiser employed by the CFMEU acting in that capacity. The Project On 1 July 2008, Diploma Constructions (WA) Pty Ltd (Diploma) entered into a contract with Knoxville Group Limited to construct a 14-level commercial office tower located at 915 Hay Street, Perth (Project). At all material times Diploma was a party to contracts with contractors under which the contractors agreed and were required to perform building work as that term is defined in s 5 of the BCII Act (Building Work) on the Project. At all material times, the contractors engaged on the Project included: (a) Commercial Tiling Services WA; (b) Action Interiors Pty Ltd; (c) Firesafe Systems Pty Ltd; (d) Planet Plumbing (WA) Pty Ltd; (e) Triple M Mechanical Services WA; (f) Micos Curtain Wall Australia Pty Ltd; (g) D & Z Constructions; (h) Ward Post Tensioning; and (i) Betta Bricklaying (WA) Pty Ltd, together, the Major Contractors. Diploma and each of the Major Contractors is a "building contractor" and a "building industry participant" for the purposes of the BCII Act. At all material times, each Major Contractor employed workers to perform Building Work on the Project (Construction Employees). At all material times, certain of the Major Contractors engaged their Construction Employees in accordance with terms and conditions prescribed by a Commonwealth industrial instrument as that term is defined in s 4(1) of the BCII Act. Prior to about 21 April 2009, Diploma routinely allowed entry to its construction sites, including to the Project, by officers of the CFMEU, including McDonald, regardless of whether those officers held a permit under s 740 of the Workplace Relations Act 1996 (Cth) or s 512 of the Fair Work Act 2009 (Cth) (Permit). Before 21 April 2009, an officer of Diploma prepared a document entitled "Work Method Statement - WMS 12 Rights of Entry to Comply with Federal Guidelines" (Diploma Guidelines). The Diploma Guidelines required staff of Diploma to ensure that an officer of the CFMEU did not enter a Diploma site uninvited unless he or she held a Permit. McDonald did not hold a Permit. On or about 21 April 2009, Geoff Simpson, the General Manager of Diploma, wrote to the State Secretary of the CFMEU and informed him that: (a) entry onto Diploma construction sites, including the Project, would in the future be in accordance with the Diploma Guidelines; and (b) any permission that McDonald had to enter any Diploma construction site was withdrawn and he did not have permission to enter any Diploma construction site. Work required on 5 - 6 June 2009, 8 June 2009 and 24 - 25 June 2009 Construction Employees of the Major Contractors were rostered to and required to perform Building Work on 5, 6, 8, 24 and 25 June 2009 (Relevant Period) on the Project. I have been considerably assisted in the compilation of these reasons by the written submissions of the parties which I have employed where that was appropriate without attribution at every point. Agreement as to liability and penalties The respondents admit having contravened s 38 of the BCII Act by being involved in unlawful industrial action at the Diploma Project site at 915 Hay Street, Perth on 5, 6, 8, 24 and 25 June 2009 (Industrial Action). The applicant seeks against the respondents: (a) declarations pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth); (b) orders imposing pecuniary penalties pursuant to s 49(1) of the BCII Act; (c) an order requiring them to pay the sum of $102,866.51, or such other sum as is determined by the Court, to Diploma as compensation for damage suffered by it as a result of the contraventions: s 49(1)(b) of the BCII Act; and (d) an order that the respondents pay the applicant's costs, as agreed or assessed. The applicant and the respondents have reached agreement on liability, as outlined in the statement of agreed facts (SOAF) filed on 17 November 2010. The respondents agree that the imposition of pecuniary penalties under the BCII Act is appropriate. The parties have also agreed on the proposed penalties which they submit are within the range appropriate for each of the admitted contraventions of s 38 of the BCII Act. They have not reached agreement in relation to the claim for compensation. Section 38 of the BCII Act is a Grade A civil penalty provision. In accordance with s 49(2) of the BCII Act, the maximum penalty is 1,000 penalty units for a body corporate and 200 penalty units for an individual. A "penalty unit" is $110: s 4AA(1) of the Crimes Act 1914 (Cth). Accordingly, the maximum penalty for each contravention of s 38 of the BCII Act is: (a) for a body corporate such as the first respondent (CFMEU), $110,000; and (b) for individuals, such as the second respondent (McDonald) and the third respondent (Buchan), $22,000. The parties have agreed that the Industrial Action can be properly divided into contraventions of s 38 of the BCII Act on the following dates: (a) 5 - 6 June 2009; (b) 8 June 2009; and (c) 24 - 25 June 2009. On 21 July 2010, the parties agreed to settle the proceeding, subject to the Court's approval, on the following basis: (a) In relation to the CFMEU, the imposition of penalties of: (i) $50,000 (45% of a worst case) in respect of the unlawful industrial action for 5 - 6 June 2009; (ii) $30,000 (27% of a worst case) for the unlawful industrial action on 8 June 2009; and (iii) $40,000 (36% of a worst case) for the unlawful industrial action on 24-25 June 2009. (b) In relation to McDonald, the imposition of penalties of: (i) $10,000 (45% of a worst case) for the unlawful industrial action on 5-6 June 2009; and (ii) $7,000 (32% of a worst case) for the unlawful industrial action on 24-25 June 2009. (c) In relation to Buchan, the imposition of penalties of: (i) $7,000 (32% of a worst case) for the unlawful industrial action on 5-6 June 2009; (ii) $3,000 (14% of a worst case) for the unlawful industrial action on 8 June 2009; and (iii) $3,000 (14% of a worst case) for the unlawful industrial action on 25 June 2009. (d) That the penalties imposed on the respondents by the Court will be paid to the Consolidated Revenue Fund within 90 days of judgment: s.49(5) of the BCII Act. (e) That the interlocutory injunction ordered on 23 December 2009 be dissolved from the date of the judgment. (f) The respondents pay the applicant's costs to be taxed, if not agreed. Despite the terms of this agreement I note in relation to [22(b)(ii)] above that, on the evidence, Mr McDonald was not on the Site on 25 June 2009. The parties agreed that this fact makes no difference to the proposed penalties. I regard the approach of allocating penalties as against each admitted contravention as being appropriate. It reflects the acceptance by the respondents of distinct contraventions. General principles The overriding principle is to ensure that the sentence is proportionate to the gravity of the conduct: Attorney-General v Tichy (1982) 30 SASR 84 at 92. The purposes to be served by the imposition of penalties are threefold: (a) punishment, which must be proportionate to the offence and in accordance with prevailing standards; (b) deterrence, both personal (assessing the risk of re-offending) and general (a deterrent to others who might be likely to offend); and (c) rehabilitation. Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 at [93] - [94] . The task which a sentencing judge is faced with is one of "instinctive synthesis": Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 at [27] per Gray J and [55] per Graham J. Such a process requires that a court take into account all relevant factors and to arrive at a single result which takes due account of them all: Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 at [74] -[76]. Proportionality and consistency commonly operate as a final check on the penalty assessed: Australian Ophthalmic Supplies at [54] per Graham J. See also: Cruse v Construction, Forestry, Mining and Energy Union (2009) 182 IR 60 at [10]. Courts exercising industrial jurisdiction have identified a range of factors which may or may not be relevant to the circumstances of a particular case when assessing appropriate penalty: for example, Construction Forestry Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at [8]; Construction Forestry Mining & Energy Union v Hamberger [2003] FCAFC 38 ; (2003) 127 FCR 309 at [51] . However, the courts have warned against the use of checklists because they give rise to the risk of transforming the process of instinctive synthesis into the application of a rigid catalogue of matters for attention: At the end of the day the task of the court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligation. Australian Ophthalmic Supplies at [89] - [91]. The courts also warn against comparing the case the subject of the assessment with any other particular case so as to derive from it the amount of penalty to be fixed : see, for example, NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission [1996] FCA 1134 ; (1996) 141 ALR 640 at 648. The courts now regard more seriously any contravention of industrial laws than has generally been the case in the past. In Finance Sector Union of Australia v Commonwealth Bank of Australia [2005] FCA 1847 ; (2005) 224 ALR 467 at [72] Merkel J said : The legislature has, over time, also moved to increase the penalties that may be imposed in respect of unlawful industrial conduct. In my view, any light handed approach that might have been taken in the past to serious, wilful and ongoing breaches of the industrial laws should no longer be applicable. Although the penalties imposed by Merkel J were reduced on appeal, this was not because of an error in principle. His Honour’s comments were endorsed by a Full Court in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170 ; (2008) 171 FCR 357 at [62] , per Branson and Lander JJ. The principles applicable where the parties are agreed on the penalties to be imposed arose in the NW Frozen Foods case and were summarised by a Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] : (a) It is the responsibility of the court to determine the appropriate penalty; (b) Determining the amount of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another; (c) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy; (d) The view of the regulator, as a specialist body, is a relevant, but not determinative, consideration on the question of penalty; (e) In determining whether the proposed penalty is appropriate, the court examines all of the circumstances of the case. Where the parties have put forward agreed facts, the court may act on that statement if it is appropriate to do so; and (f) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the court's view, appropriate in the circumstances of the case. In answering that question, the court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if it is within the permissible range. The above principles have been applied in an industrial context. See, for example, Caelli at [57]; Leighton Contractors Pty Ltd v Construction Forestry Mining & Energy Union (No 4) (2006) 164 IR 375 at [53]-[56]; Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 196 IR 365 at [158] ( Westgate ). Relevant considerations Bearing in mind the warning against applying a rigid catalogue of matters, the considerations potentially relevant to the assessment of penalty for a contravention of the BCII Act include: (a) the nature and extent of the conduct which led to the breaches; (b) the circumstances in which that relevant conduct took place; (c) the nature and extent of any loss or damage sustained as a result of the breaches; (d) whether there had been similar previous conduct by the respondent; (e) whether the breaches were properly distinct or arose out of the one course of conduct; (f) the size of the business enterprise involved; (g) whether or not the breaches were deliberate; (h) whether senior management was involved in the breaches; (i) whether the party committing the breach had exhibited contrition; (j) whether the party committing the breach had taken corrective action; (k) whether the party committing the breach had cooperated with the enforcement authorities; and (l) the need for specific and general deterrence. Stuart-Mahoney v Construction Forestry Mining & Energy Union (2008) 177 IR 61 at [40], per Tracey J, applied in Westgate at [159] by Jessup J. Statutory scheme The main object of the BCII Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole: s 3(1) of the BCII Act. The BCII Act aims to achieve that object by the means set out in s 3(2) of the BCII Act. These include promoting respect for the rule of law and ensuring that building industry participants are accountable for their unlawful conduct. Nature and extent of the relevant conduct The applicant submits that the assessment of the gravity of the conduct should have regard to: (a) the prominent role of the CFMEU as an industrial association in the building and construction industry; (b) the senior role that McDonald holds in the CFMEU, namely, as Assistant Secretary of the Western Australian Divisional Branch of its Construction and General Division. The respondents submit, I suspect in error, that there is no evidence supporting a finding that any senior management of the CFMEU (apart from the third respondent – Buchan) either had any knowledge of or indorsed or was involved in the contravention. I do not think that there is any doubt that McDonald is part of the senior management of the CFMEU; (c) the role of Buchan who was an organiser employed by the CFMEU and acting in that capacity; (d) the need for police to attend the Project to remove McDonald and Buchan from the Project. The respondents say that this is not a material consideration. The applicant argues that the Diploma Guidelines meant that the CFMEU officials had to comply with the requirements for statutory right of entry. For this regime to be enforced by Diploma, when Buchan refused to leave voluntarily, it was necessary to call the police to deal with what had become a trespass. The removal of Buchan and McDonald from site by the police on 5 June 2009 immediately preceded the second meeting on that day, which resulted in the two day strike. In my view the fact that the police were required to attend may be relevant, but, in context I consider it to be of little weight on the issue of penalties; (e) the concerted and protracted nature of the conduct: three separate contraventions involving four meetings on five days over a period of three weeks; (f) the entry of McDonald onto the Project without claim of right and in deliberate defiance of the Diploma Guidelines; (g) the use of safety issues as a guise for the Industrial Action, when the respondents now admit that there was no reasonable concern by employees about an imminent risk to their health or safety at the Project for the period of the Industrial Action; and (h) the need for court orders to restrain the unlawful industrial action. The application in these proceedings was filed on 26 June 2009 and the first interlocutory injunction was ordered on 2 July 2009. The relevance of this as a consideration is disputed by the respondents. No doubt this might in a particular case be relevant. Here, however, the injunctive relief was not to restrain continuing conduct but rather conduct that might occur in the future. The unlawful conduct had ended by the time proceedings were instituted. The applicant submits and I accept that the impact of the unlawful conduct on Diploma, the head contractor on the Project, as well as sub-contractors is also relevant. (a) The effect of the Industrial Action on "critical path" works at the Project, being works which, when delayed, result in the Project being correspondingly delayed; (b) The disruption caused to a number of contractors working at the Project. About 120 workers were on strike on 5, 6 and 8 June 2009 and about 60 workers were on strike on 24 and 25 June 2009; and (c) That damage was suffered by Diploma as a result of the contraventions. Events of 5 June 2009 On 5 June 2009: (a) sometime before 7.15 am, Buchan entered the Project in purported exercise of his rights of entry as a Permit holder pursuant to s 49I of the Industrial Relations Act 1979 (WA). Diploma did not initially object to his entry; (b) a meeting of Construction Employees occurred after the commencement of work on that day in the basement area of the Project (5 June Meeting); (c) Buchan addressed the Construction Employees in attendance at the 5 June Meeting; (d) Mr Wesley Francis, Diploma Site Manager and Mr Paul Day, Diploma Project Manager also attended part of the meeting; (e) in the presence of Francis and Day, Buchan told the Construction Employees present at the 5 June Meeting that: (i) there were safety issues on the Project; (ii) there were safety issues on other construction sites under the control of Diploma; (iii) an accident had occurred on one of those other sites; and (iv) he was going to raise a petition for all of the Diploma sites with regards to general safety concerns and send it up to John Norup, who is director of Diploma. (f) Buchan addressed the 5 June Meeting prior to conducting any inspection of the Project; (g) [Deleted] (h) following the 5 June Meeting, Buchan proceeded to walk around the Project to inspect safety issues; (i) whilst walking around the Project, Buchan was asked to leave the Project by the Diploma Site Manager but Buchan refused; (j) the Diploma Site Manager telephoned the police at or about 8.50am and requested that the police attend the Project; (k) at or about 9.45 am, McDonald entered the Project without permission and then made his way to Buchan; (l) at approximately 9.55 am, police officers attended the Project. A short time after this, the police escorted McDonald and Buchan off the Project; (m) McDonald and Buchan then addressed a meeting of some Construction Employees immediately outside the entrance to the Project (Second 5 June Meeting); (n) at the Second 5 June Meeting, McDonald and Buchan: (i) informed the Construction Employees of the events of that morning; (ii) proposed that a vote be taken by the attending Construction Employees as to whether to take the strike action; (iii) the Construction Employees at the Second 5 June Meeting voted to strike; and (iv) Buchan, in the presence of McDonald, informed Diploma staff that the Project would be closed until 8 June 2009 due to safety concerns, but did not identify any particular concern. After about 10.30am on 5 June 2009, approximately 120 Construction Employees employed by the Major Contractors left the Project without commencing the performance of Building Work and did not return to work for two working days, until 8 June 2009. That failure to perform building work on 5 and 6 June 2009 caused a disruption of work at the Project and a delay of progress in construction. No safety issue concerning the Project or other Diploma site was raised with Diploma staff prior to the 5 June Meeting or the Second 5 June Meeting by Buchan, McDonald any other representative of the CFMEU or any Construction Employee. Buchan and McDonald were, directly or indirectly, knowingly concerned in the Construction Employees taking strike action on 5 and 6 June 2009. Events of 8 June 2009 On 8 June 2009: (a) at or about 6.30 am, Buchan attended the Project and asked the Diploma Site Manager to allow him to enter the Project so that he could hold a meeting with the Construction Employees; (b) upon permission to enter the Project being refused by the Diploma Site Manager, Buchan said words to the effect that there would be further strike action if he could not hold the meeting on site. Diploma continued to refuse him entry; (c) Buchan then arranged for a meeting of Construction Employees to be held outside the Project gates (8 June Meeting); (d) at the 8 June Meeting: (i) a majority of Construction Employees working on the Project that day attended; (ii) Buchan informed the attending Construction Employees of the events of that morning; and (iii) following the conclusion of the 8 June Meeting, approximately 120 Construction Employees employed by the Major Contractors left the Project without re-commencing the performance of Building Work and did not return to work for one working day, until 9 June 2009. (iv) Buchan was, directly or indirectly, knowingly concerned in the Construction Employees taking strike action. The failure to perform Building Work on 8 June 2009 caused a disruption of work at the Project and a delay of progress in construction. Events of 24 June 2009 On 24 June 2009, at 6.07 am, McDonald entered the Project without permission from Diploma, for the purpose of arranging a meeting with the Construction Employees, walked to the basement area of the Project and told the Construction Employees to attend a meeting outside the Project gates. During the period 6.50 am to 7.00 am, a meeting of Construction Employees was held outside the Project gates (24 June Meeting). At the 24 June Meeting: (a) a majority of Construction Employees working on the Project that day attended; (b) McDonald proposed that a vote be taken by the attending Construction Employees as to whether to take the strike action; (c) the Construction Employees voted to strike; and (d) McDonald encouraged or procured, or was directly or indirectly knowingly concerned in, the Construction Employees taking strike action. Following the conclusion of the 24 June Meeting, approximately 60 Construction Employees employed by the Major Contractors left the Project without re-commencing the performance of Building Work and did not return to work for one working day, until 25 June 2009. That failure to perform building work on 24 June 2009 caused a disruption of work at the Project and a delay of progress in construction. Events of 25 June 2009 At or about 7.30 am on 25 June 2009, Buchan requested permission to have a meeting with Construction Employees on the Project. Buchan's request to hold the meeting on the Project was refused by Diploma. Buchan convened a meeting of the Construction Employees outside the Project gates (25 June Meeting). During the 25 June Meeting: (a) a majority of Construction Employees scheduled to work on the Project that day attended; (b) Buchan proposed that a vote be taken by the attending Construction Employees as to whether to continue the strike action; (c) the Construction Employees voted to continue the strike; and (d) Buchan encouraged or procured, or was directly or indirectly knowingly concerned in, the Construction Employees taking strike action. Following the conclusion of the 25 June Meeting, approximately 63 Construction Employees employed by the Major Contractors left the Project without re-commencing the performance of Building Work and did not return to work for one working day, until 26 June 2009. That failure to perform building work on 25 June 2009 caused a disruption of work at the Project and a delay of progress in construction. Building Industrial Action The above Industrial Action was "building industrial action" within the meaning of that term in s 36(1)(d) of the BCII Act, in that the relevant Construction Employees either failed to perform or failed to attend for building work on each of the five days in question. The Industrial Action did not fall within the exception in para (g) of the above definition. Industrially-motivated There were no grounds for any of the Construction Employees to hold a reasonable belief that there was an imminent risk to their health or safety at the Project during the Relevant period. In terms of para (d) of the definition of "industrially-motivated" in s 36(1) of the BCII Act, it is admitted that the Industrial Action on all relevant days was motivated by the purpose of disrupting the performance of work. Prior relevant contraventions Barker J in Australian Building & Construction Commissioner v Construction Forestry Mining & Energy Union (No 2) (City Square) (2010) 199 IR 373 summarised at [47] the agreed applicable principles in that case. These are discussed as follows : (a) Similar prior contraventions may be taken into account in assessing penalty, but cannot be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the instant contravention. To do so would be to impose a fresh penalty for past contraventions: Veen v The Queen (No 2) [1988] HCA 14 ; (1988) 164 CLR 465 at 477. (b) However, similar previous contraventions may demonstrate that a respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions. Previous contraventions may demonstrate that the respondent has manifested in the commission of the latest contravention a continuing attitude of disobedience of the law. In such a case, "retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted": Veen (No 2) at 477. (c) A sentencing court looks to the general record of conduct of the offender, his attitude to the law as disclosed by such conduct, apparent attempts at rehabilitation and similar considerations. Repeated conduct of a particular kind may lead to an identified need to provide some particularly persuasive form of deterrent against similar future conduct: Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169 at [64] . (d) A respondent is not to be punished again for the prior conduct. Prior conduct may diminish leniency by reason of good character, having an upward effect on penalty, albeit within the proper limits indicated by the circumstances of the immediately contravening conduct: R v McInerney (1986) 42 SASR 111 at 113. (e) The effect of prior contravening conduct is more cogent if it has been the subject of conviction. If not, the prior conduct is still relevant but perhaps of less weight: McInerney at 113. (f) Whether previous misconduct by branches in other states of a national organisation is relevant to fixing a penalty is a question of logic. In some cases, a pattern of conduct across the country may suggest a national culture of misconduct: Temple v Powell at [63]. (g) The quality of the conduct and its relevance to the industrial behaviour which the instant legislation seeks to address is determinative, not whether the prior conduct arose under different legislation or different provisions of the instant legislation: Stuart-Mahoney v CFMEU at [44] to [46]. (h) Prior relevant conduct includes that of officials from other branches of the union: Williams v Construction, Forestry, Mining and Energy Union (No 2) (2009) 182 IR 327 at [19]-[25]. However, Barker J in City Square at [48] accepted that contraventions in other branches of the CFMEU, while relevant, are to be given less weight than contraventions within the branch in question. Past conduct cannot operate so as to increase the penalty beyond that which would be appropriate to the conduct in question: Temple v Powell at [63]. The CFMEU The attached Table A identifies the prior conduct of the CFMEU which the applicant submits ought be taken into account. The entries in the table include: (a) matters in which the conduct occurred, and contraventions were judicially recorded, prior to the conduct the subject of this proceeding; and (b) matters in which the conduct occurred prior to the conduct the subject of this proceeding, but the contraventions were not judicially recorded until after that date. A list of prior relevant conduct in a table in similar form was submitted and considered relevant by the Full Court in Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145 at [68]-[74]. The applicant submits that the table reveals that, the CFMEU, through its representatives at various levels around the country, has a history of engaging in unlawful industrial action similar to the kind in question in this case. The CFMEU disputes the relevance of most of the content of this table. When considering the use to be made of schedules of so-called "relevant prior records" of the respondents, Justice Le Miere adopted the approach of Branson J in Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at 232 when he said: It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the first defendant anywhere in Australia. The first defendant is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved in dealing with employers in relation to industrial matters every day. It is inappropriate to take account of conduct of the first defendant through various Branches, Divisions & officers or representatives that is of a different character than the contravening conduct in question and are contraventions of different legislation. Leighton Contractors Pty Ltd v CFMEU & Ors at [67]. Gyles J said in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [12] to [14]: ...There is a long and well-documented history of unlawful activity by union organisers and delegates in the building industry in Australia that counsel for the CFMEU acknowledged, but submitted that there has been a considerable change in culture over recent years. This makes it desirable that any return to the bad old days be appropriately penalised. [13] A number of findings involving unlawful behaviour by officials related to the CFMEU have been made in recent years, in addition to the other case involving Lane (eg Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) [1999] FCA 1714 , (1999) 94 1R 231 (sic); Construction, Forestry, Mining & Energy Union v Hamberger [2003] FCAFC 38 ; (2003) 127 FCR 309 ; Alfred v Walter Construction Group Ltd [2005] FCA 497 ; Martino v Construction, Forestry, Mining and Energy Union , Magistrates Court of Victoria (Industrial Division), 10 May 2006; Alfred v Construction, Forestry, Mining and Energy Union , District Court of New South Wales, 3 March 2004; Hadgkiss v Blevin [2004] FCA 697 ; [2004] FCA 917 ; Hadgkiss v Construction, Forestry, Mining and Energy Union [2007] FCA 524 ; (2007) 162 IR 385; Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 ; Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 ; (2007) ATPR 42-140 ; Cruse v Multiplex Ltd [2007] FCA 2015 ; Cruse v Construction, Forestry, Mining and Energy Union [2007] FMCA 1873 ; and Alfred v Lanscar [2007] FCA 1001 ; (2007) 167 IR 320). Counsel for the CFMEU submits that only building industry cases are relevant, and then only those that involve the relevant divisional branch (the New South Wales Construction and General Divisional Branch), bearing in mind that the Union is an amalgamated federation ( Re Election for Office in the Construction, Forestry, Mining and Energy Union; Ex parte Sutton [2002] FCA 971 ; (2002) 115 IR 345 at [23] ). I agree that the classes of case identified are the most relevant, but I do not agree that the other cases are irrelevant. Ultimately, union officials will act in accordance with the policies of the union. An official of one geographic or industry branch will observe the manner in which policies are applied by the federal body in relation to other branches. These various cases illustrate that the federal body has not been effective in ensuring that officials act in accordance with the law. I note that there is no evidence of offending officials (including Lane) suffering any serious disciplinary penalties. [14] In my opinion, notwithstanding the purely vicarious nature of the liability of the CFMEU, the penalty in this case, when compared with the maximum penalty, should adequately reflect the systematic nature of the failure of the CFMEU to deter or prevent actions of the kind involved in this case and act as a spur towards effective action by the CFMEU and the State entities connected with it.... Paragraph 13 of the above decision was recently cited by Flick J in Darlaston v Parker (No 2) (2010) 200 IR 353 at [24]. I do not consider that the liability of the CFMEU, which is a large national union, should be considered primarily, or at all, by reference to the conduct only of the State branch(es) involved in the particular contraventions under consideration. Its conduct and its past contraventions nationally are the touchstone upon which penalties ought be assessed. It is artificial to proceed otherwise. If the CFMEU does not know what is happening in the way of proposed action, lawful or unlawful, at the instance of its State branches then it should know and ought not be given credit for its ignorance of such matters. In any event, in this particular case the positions held by McDonald in the national C & G Division tell against his conduct being treated as purely "local" to Western Australia, untouched by head office of the national organisation. The CFMEU accepts that penalties imposed on other branches of the CFMEU across Australia may have relevance in showing the prevailing range of penalties, but urges caution in distinguishing those cases from the manner in which they have been summarised by the applicant. The CFMEU relies on its own Schedule A which I have attached to these reasons and which are responsive to Table A. The CFMEU submits that contraventions under previous legislation involving coercive behaviour are relevant to s 43 BCII Act contraventions but not to s 38 of the BCII Act. The CFMEU has 2 prior penalties for breaches of s 38 of the BCII Act in WA occurring before the dates of the contraventions in this action. Both those contraventions relate to conduct that is now 5 years old: (a) Fines totaling $90,000 for 18 contraventions arising from 10 unauthorised meetings, 2 overtime work bans and 6 strikes (between 1 and 3 days) occurring over 1 year between 9 March 2005 and February 2006: Leighton Contractors v CFMEU & Ors ; (b) A fine totaling $12,000 for 2 strikes on 17 August 2005 (48 hrs) and 25 August 2005 (24 hrs) involving 400 and 20 workers respectively: Temple v Powell. However, the applicant submits that the court should not confine its consideration of prior CFMEU conduct to unlawful industrial action under s 38 BCII Act and that coercion cases where industrial action is taken or threatened are relevant, as are cases where the conduct in question is in the nature of industrial action, such as bans and picket lines. In the Darlaston case, Flick J "doubted" that the discretion to assess penalties could properly be confined to taking into account contraventions "of the same character" as those of the subject of the proceedings: at [24]. I would respectfully agree with the observations made by Tracey J in Stuart-Mahoney v CFMEU at [44] to the effect that although similar conduct, which has been found to contravene other legislative provisions, may have potential relevance, including contraventions of Part 9 of the Workplace Relations Act relating to unlawful industrial action and coercion, conduct which is of a “different character” does not assist the penalty assessment. There is an additional case, not included in Table A involving the CFMEU, McDonald and Buchan where there was conduct in breach of the Trade Practices Act 1974 (Cth) which, the applicant submits, can be seen as in the nature of industrial action and relevant to the question of penalty. In Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 , Nicholson J penalised the CFMEU $50,000 in respect of two incidents at the Holiday Inn site, next to Burswood Casino. The incidents took place on 16 April 2004 and 4 November 2004. McDonald and Buchan were involved in a secondary boycott, preventing and hindering the supply of concrete to the site, both directly and through organising a picket line which acted as a physical barrier to prevent entry of concrete trucks and the concrete pump. McDonald engaged in this conduct on both dates. Buchan was engaged, in concert with McDonald, in the unlawful conduct on 16 April 2004, but not on 4 November 2004. The applicant submits that the conduct in this case occurred in June 2009, against a background of a large number of prior contraventions and that in the circumstances, specific deterrence looms large as a relevant consideration: McInerney at 113. The applicant further contends that the extent of the relevant prior conduct is such as to give rise to a need for the Court to provide a particularly persuasive form of deterrence against similar future misconduct on the part of the CFMEU: Temple v Powell at [64]. Similarly, the applicant submits that the court should have regard to the need for rehabilitation in circumstances where penalties imposed in the past have seemingly failed to achieve this. McDonald The applicant submits that items 1 and 2 in Table A identify prior relevant contraventions by McDonald and that further prior relevant conduct of his is in attached Table B. Zaknich v McDonald [2000] WASC 151 was a decision of Scott J in the WA Supreme Court. On 7 December 1998, McDonald gave an undertaking to the District Court of WA that he would not enter two sites in Perth without giving the occupier at least 24 hours' notice and would not hold discussions with workers on those sites during working hours. In breach of that undertaking, McDonald on 20 July 1999 entered one of the sites and held a meeting in working hours. He was held to have committed the criminal offence of contempt of court at common law. He was fined $2,000 and ordered to pay costs. Scott J said that he had acted "in blatant disregard of his undertakings": at [67]. The applicant submits that this contempt of court should be taken into account and so too the revocation of McDonald’s Federal entry permit on 19 July 2001, which was based on a pattern of conduct over the previous 12 months. Further, the applicant contends that the absence of an entry permit made it impossible for McDonald to comply with the Diploma Guidelines in this case. In Lee v McDonald [2006] WAIRComm 4220 (21 April 2006), McDonald’s WA entry authorisation was revoked after review of an assault by him on a building site on 22 November 2002. He had been convicted of criminal assault in respect of this incident on 29 August 2005. Senior Commissioner Gregor described McDonald at [31] as "a recidivist" and took into account subsequent conduct of McDonald in Lee v McDonald and Buchan [2004] WAIC 12071 at [33]: ... this shows that there is a period of similar behaviour now over a long period of time. In Wilson v McDonald [2009] WASCA 39 ; (2009) 253 ALR 560 the WA Court of Appeal on 12 February 2009 convicted McDonald of criminal trespass by remaining on a building site in Joondalup on 19 February 2007 after having been expressly told to leave. These facts bear a resemblance to those in the present case. There are three other criminal convictions for trespass during the period February to April 2007. The applicant submits that the above antecedents are relevant as the prior conduct is all in an industrial context and shows a pattern of disregard for the law. McDonald submits that Table B does not contain any relevant prior similar conduct because: (a) offences of contempt and trespass under the Criminal Code of WA contain elements distinguishable from those required for unlawful industrial action under s 38 of the BCII Act; (b) the applications to revoke Buchan's Federal and State rights of entry are irrelevant to the elements of unlawful industrial action under s 38 of the BCII Act; (c) in any event 3 of the 4 cases listed are 10 years old and do not show a pattern of repeated disregard for industrial laws. Rather McDonald submits that he has two prior penalties relevant to contraventions of s 38 of the BCII Act which are contained in the applicant's Table A: (a) A fine of $1,500 for a strike by 400 workers for 2 days on 17 August 2005 in contravention of s 170MN Workplace Relations Act : Temple v Powell, (b) A fine of $30,000 for 16 contraventions of section 38 of the BCII Act arising from 8 unauthorized meetings, 2 overtime work bans and 6 strikes (between one and three days) occurring over 1 year between 9 March 2005 and February 2006: Leighton Contractors v CFMEU & Ors . Buchan The only prior relevant conduct alleged against Buchan arises from item 6 in Table B, a finding of the Australian Industrial Relations Commission (AIRC) under s 770 of the Workplace Relations Act that Buchan had abused the rights of entry conferred by that Act. The AIRC on 18 November 2008 ordered that : The permit held by Michael Buchan be suspended as follows: (a) 3 months immediate suspension from the date of this order; (b) a further suspended 2-month suspension to apply to any permit then held by Michael Buchan, if Michael Buchan breaches any provision of Part 15 of the Workplace Relations Act during the period of 12 months from the date of this order; and (c) if Michael Buchan does not breach any provision of Part 15 WR Act for a period of 12 months from the date of this order, then no further period of suspension of his permit will be imposed. At the same time, the AIRC ordered that : The following condition be imposed on all current permits and all permits to be issued in the next 2 years in respect of the Construction and General Division, Western Australia Divisional Branch of the CFMEU: That the permit holder is not permitted to enter or remain on premises being construction sites in the company of, or in concert with, Joseph McDonald except where McDonald has been invited in advance on to those premises by an owner and has complied with the requirements of the direction in order 5. A written direction be given to Mr McDonald by a duly authorised officer of the CFMEU that Mr McDonald must not purport to rely on any right of entry under the Workplace Relations Act 1996 in order to facilitate access to construction sites when he in fact holds no right of entry permit under the Act. The Diploma Guidelines were introduced on 21 April 2009 and made it clear that McDonald was not "invited" to enter the project. On 5 June 2009, McDonald entered the Project at about 9.45 am without permission and at about 9.55 am, both he and Buchan were escorted off the Project. For this 10 minute period, the condition on Buchan’s right of entry permit was breached. The applicant submits that this is an aggravating factor which should be taken into account. The circumstances leading to the above AIRC orders are set out in the Reasons for Decision of Lacy SDP of 20 November 2008: Radisich v Buchan [2008] AIRC 896. The allegations in support of these orders against Buchan and which were held to have been established at [12] and [18], were set out under [7] as follows: Buchan abuse of rights [7] Mr Buchan is said to have abused the rights conferred on him under Part 15 of the WR Act in the following ways: - being at the Pindan construction site on 22 February 2007 in company and in concert with Mr McDonald who was purporting to exercise rights he did not have under Part 15: - failed to exercise the purported rights with due diligence, reasonable civility and avoidance of unnecessary obstruction by repeatedly making offensive statements to site personalities; - refused repeated directions to leave the site when he had no lawful basis to remain on site; - deliberately sought to mislead the occupier of the site as to the basis of his right to enter. - attended the Q-Con site on 24 April 2007 in company and in concert with Mr McDonald who was purporting to exercise rights he did not have under Part 15: - failed to exercise purported rights with due diligence, reasonable civility and avoidance of unnecessary obstruction by repeatedly making offensive statements to site personnel; - in concert with Mr McDonald remained on site after repeated directions to leave in circumstances where he had no legal right to be or remain on site; - entered the Q-Con site at about 4pm on 27 April 2007: - purporting to exercise OHS and recruitment rights; - acted in an improper manner by refusing to comply with reasonable directions regarding site safety; - remained on site contrary to reasonable requests and directions to leave; - embarked on a general safety inspection despite reasonable requests to comply with OHS requirements applicable to the areas inspected and generally. Buchan does not accept that Table B contains any prior relevant conduct under the BCII Act as item 6 relates to his right of entry permit suspension and is not comparable conduct to unlawful industrial action of the nature of a strike. He submits that he should be treated as having no prior relevant contraventions of the BCII Act and that the agreed penalty properly takes into account his contraventions as a first offender, having regard to the penalties imposed on other organisers in similar BCII contraventions. In the light of the secondary boycott in the trade practices case referred to above, the applicant does not agree that Buchan has no relevant prior contraventions. The admitted abuse of entry permit in Radisich v Buchan at [7] involved three incidents: on 22 February, 24 April and 27 April 2007. Whether or not abuse of right of entry can be seen, as sufficiently similar to unlawful industrial action, the fact that Buchan's permit had been suspended is, I find, relevant to the facts of this case. Although he had served his immediate three month suspension by June 2009, the events in this case occurred while Buchan was still under a "suspended suspension" which was for 12 months from 18 November 2008. It was in this context that he refused to leave when asked on 5 June 2009 and the police were called. For reasons I mention below it is unnecessary for me to resolve the differences between the parties as to what is relevant prior conduct. Subsequent Similar Contraventions There is one case (not in the Tables or Schedule A) in which relevant conduct occurred after June 2009, the period during which the conduct in this case occurred. In the City Square case, the unlawful industrial action was engaged in by the CFMEU and McDonald on 15 July 2009, which is about three weeks after the last unlawful industrial action by those respondents in this case, which occurred 25 June 2009. There was a submission by the applicant that this was a relevant consideration on penalty. However, it was conceded that even if it was, which is in dispute, the affect on penalty would be very little if any. In those circumstances it is not necessary to resolve the legal question advanced. Counsel were content for me to adopt this course. Deliberate conduct Another factor to be weighed in the assessment is whether the contravening conduct was deliberate or part of a conscious act on the part of the contravener. Circumstances where someone had undertaken a deliberate industrial strategy will weigh in favour of a higher penalty than circumstances where the contravention flowed from a view of the law which was not wholly untenable, or genuinely believed to be correct: Australian Federation of Air Pilots v Skywest Airlines Pty Ltd (1996) 70 IR 284 at 286. Mere inadvertence will generally bring about a lighter penalty. There is no basis for concluding that the conduct in this proceeding was inadvertent. It was a concerted exercise aimed at disrupting the performance of work, in order to exert pressure on Diploma. It cannot be said that any of the respondents were unaware of the legal consequences of their conduct. Post-contravention conduct Any contrition, corrective conduct or cooperation with relevant enforcement authorities after the contravention will have relevance to penalty assessment. Contrition may manifest itself in an expression of remorse. There is no evidence of any contrition or remorse by any of the respondents. Indeed, this is accepted by the respondents. Cooperation can be exhibited in a range of ways, such as agreeing on facts, or agreeing on penalty. The timing of any such agreement, and the impact it has on the conduct of the trial and witnesses who would have been called at trial, are relevant: Stuart-Mahoney v CFMEU at [52]. The agreement on facts and penalty, the lack of opposition to a judicial finding of contraventions and the absence of any contest on the evidence are all factors relevant to the exercise of the discretion by the Court: Draffin v CFMEU at [95]. The applicant submits that the timing of the agreement was not early in the proceeding. Numerous interlocutory steps, including a contested interlocutory hearing, an argument about the width of the order and an application for leave to appeal from the interlocutory judgment of the Court, had to be taken before the respondents admitted liability in the SOAF. The applicant emphasises that it was only after adverse interlocutory findings by this Court in Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (2009) 189 IR 165 at [145] as to the spuriousness of the safety concerns advanced by the respondents as the reason for taking the Industrial Action did the respondents admit that there were no grounds for any employee to hold a reasonable belief of there being an imminent risk to health or safety. The respondents point up the following matters. The proceedings commenced on an urgent basis with an interlocutory injunction shortly after the last contravention. The interlocutory injunction was heard within weeks then the parties waited for judgment. It is true that some time passed before the orders framing the injunction were finally made but that was more a feature of the parties' availability than anything else. The respondents submissions regarding the extent of the injunction were appropriate and partly successful. They then submit that the fact that they exercised their statutory right of appeal does not mean that agreement was not reached in a timely manner, once the appeal was determined. They submit that agreement was reached at an appropriate stage in the proceedings as a consequence of mediation. In my opinion, the respondents ought be given credit for what I consider is a substantial degree of co-operation which, although not immediate, did result in the avoidance of what may otherwise have been a lengthy and expensive trial. Size of the CFMEU The size of the entity which has contravened and the involvement of senior management of that entity will be a relevant consideration: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 , at 240. This has been a consideration which has been taken into account in relation to prior relevant conduct of the CFMEU: Stuart-Mahoney v CFMEU at [49]. The CFMEU is a national organisation registered with Fair Work Australia, with adequate resources with which to pay a substantial penalty. The fact that the CFMEU is a not for profit entity is of minimal relevance in the context of deliberate action by officials of the CFMEU in the course of their duties, who chose to act unlawfully: Draffin v CFMEU at [81]; Cahill v Construction, Forestry, Mining and Energy Union (No 4) (2009) 189 IR 304 at [80]. Deterrence The penalty arrived at by the Court must reflect the need for specific and general deterrence: Caelli at [93]. Specific deterrence is directed to ensuring that the contraveners are not prepared to embark upon the risk of re-offending. General deterrence is directed to ensuring that the penalty will act as a deterrent to others who might be likely to act unlawfully. The penalty should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like-minded persons or organisations. If it does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the relevant provision: R v Gordon (1994) 71 A Crim R 459 at 468. These matters in conjunction with regard to prior relevant conduct make specific deterrence an important consideration, most particularly for the CFMEU and McDonald. In Cahill v CFMEU (No 4), Kenny J said at [93]: Deterrence, both specific and general, is a basic objective of punishment. In the case of the Union, there is a need for specific deterrence and general deterrence. The need for specific deterrence is underscored by the Union's history of similar conduct (see above) and its continuing involvement in the building and construction industry. There is also a distinct need for general deterrence, which requires a penalty to be set so to mark the law's disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct. I accept the respondents’ submissions that whilst the need for general deterrence is recognised, such deterrence can be achieved not only by means of the imposition of a penalty but by other means as well. To the extent that other means can be shown to achieve a general deterrence in the present case, a moderate rather than high penalty is warranted. The balance of the consent orders will, to some extent, serve as a deterrent purpose. There is significant deterrence in the bringing of proceedings by itself. The achievement of a negotiated outcome is an advantage to the applicant as it release resources that might otherwise have been devoted to this matter thereby allowing those resources to be used in pursuit of other contraventions which in turn increases deterrence: Mobil at [53]. Totality As a final check on the appropriateness of the penalties to be imposed, the Court is required to consider whether the overall penalty is just and appropriate in the circumstances. This requires a final overall consideration of the sum of the penalties determined in respect of each individual contravention, rather than resolving upon the appropriate total penalty and dividing that penalty amongst the number of individual contraventions: Australian Ophthalmic Supplies at [94]. The Court must fix a penalty appropriate for each individual contravention and then as a check, at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct: McDonald v The Queen [1994] FCA 956 ; (1994) 48 FCR 555 at 556. The application of the totality principle is compulsory, not discretionary. A court must give effect to the principle where more than one contravention has been found: Johnson v R [2004] HCA 15 ; (2004) 205 ALR 346 at [35] . Tracey J in Stuart-Mahoney v CFMEU said at [60]: This principle is designed to ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing. The aggregate of the agreed penalties for each respondent is as follows: (a) CFMEU $120,000 (b) McDonald $17,000 (c) Buchan $13,000. The parties submit that upon a proper application of the totality principle, the total amount of the penalties agreed between the parties is appropriate having regard to the conduct in question and relevant prior conduct. Conclusion on penalties The applicant and the respondents submit that each of the agreed penalties for each respondent is an appropriate penalty and is within the permissible range of penalties for these contraventions and they seek the imposition of those penalties. I accept this joint submission. The penalties fall within a permissible range: they are neither manifestly inadequate nor manifestly excessive: Ponzio at [129]; Alfred v Construction, Forestry, Mining and Energy Union (No 1) [2011] FCA 556 at [67] . It has not been necessary for me to resolve the dispute between the parties as to what is relevant evidence of prior contravention by each of the respondents. This is so because whatever view I came to in respect of the alleged relevant prior contravention would not result in the imposition of any penalties different to those agreed upon by the parties and which I consider to be reasonable in the sense that they are within a reasonable range of penalties that might be imposed even assuming the applicant’s contentions as to relevant prior contraventions were accepted. It would, in those circumstances, be an arid analysis of the competing contentions. Compensation The applicant applies for an order pursuant to s 49(1)(b) of the BCII Act that the CFMEU pay $101,079.01 to Diploma as compensation for damage suffered by Diploma as a result of the CFMEU's contraventions of s 38 of the BCII Act. The respondents have admitted contravening civil penalty provisions of the BCII Act. However, they submit that there is no basis for awarding compensation to Diploma because the necessary element of causation has not been established. They otherwise put quantum of damages in issue. Section 49(1)(b) of the BCII Act provides as follows: (1) An appropriate court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil penalty provision: (a) ..... (b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention; By s 49(6) of the BCII Act, the applicant is an “eligible person”. It is admitted that the CFMEU, by the conduct of McDonald and/or Buchan, contravened s 38 of the BCII Act on three occasions. By virtue of s 48(2) of the BCII Act, McDonald and Buchan were "involved in" the relevant contraventions and "are treated as having contravened" s 38 of the BCII Act. Under s 69(1)(b) of the BCII Act, the conduct of McDonald and Buchan is "taken to be" conduct of the CFMEU. The amount of compensation that the Court is able to award under the BCII Act is unlimited, but must be specified in any order. The BCII Act provides no guidance as to the manner in which compensation is to be assessed. The applicant submits, and I accept, that reference to s 82 of the Trade Practices Act 1974 (Cth) (TPA), which is a similar provision to s 49(1)(b) of the BCII Act, is a useful analogue. Section 82(1) of the TPA relevantly provides: Subject to subsection (1AAA), a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part....may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. The statutory enquiry is as to actual damages suffered “by conduct of another person” (TPA s 82) or “as a result of the contravention” (BCII Act s 49). As to s 82 TPA common law and equitable remedies to compensate for damages suffered whether in tort, contract or otherwise, whilst they may be helpful are not determinative: Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494. This too, in my opinion, is apt in respect to the BCII Act s 49. Accordingly, the applicant here requires to establish actual damage suffered by Diploma caused by the contraventions by the Respondents. The applicant has to prove that the damage suffered was a result of the contraventions on the balance of probabilities: Imperial Chemical Industries of Australia and New Zealand Ltd v Murphy (1973) 47 ALJR 122. Whether a party has established causation is a question of fact, ultimately to be resolved by common sense principles informed, where appropriate, by value judgments: March v E & MH Stramare Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506 at 515–517 per Mason CJ and 524 per Deane J. In determining the issue of causation, the "but for" test is not conclusive. However, the "but for" test applied in a common sense and not a pedantic way may still provide a useful approach to the issue of causation: McCarthy v McIntyre [1999] FCA 784 . It may be enough that the contravention "materially contributed" to the damage: Chappel v Hart (1998) 195 CLR 232; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459. Questions of causation involved in a statutory claim for damages are to be understood by reference to the statutory subject scope and purpose, not by making a value judgment about whether the defendant ought to be held liable: Travel Compensation Fund v Tambree [2005] HCA 69 ; (2005) 224 CLR 627 per Gleeson CJ at [28]-[29] and [35], per Gummow and Hayne JJ at [45] and [49]. The main object the BCII Act is set out in s 3 of the BCII Act: (1) The main object of this Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole. (2) This Act aims to achieve its main object by the following means: ... (b) promoting respect for the rule of law; (c) ensuring respect for the rights of building industry participants; (d) ensuring that building industry participants are accountable for their unlawful conduct; (e) providing effective means for investigation and enforcement of relevant laws; ... (h) providing assistance and advice to building industry participants in connection with their rights and obligations under relevant industrial laws. The amount of $101,079.01 claimed as damages to be paid to Diploma is calculated as follows: $45,000 – loss of early completion bonus; $7,991.96 – wages of Diploma employees; $16,865.49 – hire costs of Hays Recruitment temporary personnel; $9,707.51 – hire cost of certain equipment; $21,514.05 – legal costs paid to Deacons. The Statement of Agreed Facts includes the following: (a) The CFMEU engaged in unlawful industrial action on 5, 6, 8, 24 and 25 June 2009 on the building site at 915 Hay Street, Perth, contrary to s 38 BCII Act: para 39. (b) Diploma was the head contractor on that site, having contracted with Knoxville Group Ltd on 1 July 2008 for the construction of a 14-level commercial office tower: para 5. (c) At about 10.30 am on 5 June 2009, approximately 120 Construction Employees employed by the Major Contractors left the Project without commencing the performance of Building Work and did not return to work for two working days, ie until 8 June: para 18. (d) On 8 June 2009, approximately 120 Construction Employees employed by the Major Contractors left the Project without re-commencing the performance of Building Work: para 22(d)(iii). (e) At about 7.00 am on 24 June 2009, approximately 60 Construction Employees employed by the Major Contractors left the project without re-commencing the performance of Building Work: para 27. (f) At the meeting on 25 June 2009, the Construction Employees who attended voted to continue the strike: para 31(c). (g) Following the meeting, approximately 63 Construction Employees left the Project without re-commencing the performance of Building Work and did not return to work that day : para 32. (h) On each of the above five strike days, the failure to perform building work " caused a disruption of work at the Project and a delay of progress in construction" : paras 19, 23, 28 and 33. (i) The purpose that motivated the industrial action was the disruption of the performance of work: paras 35 and 36. The respondents submit that there is no basis for awarding compensation to Diploma of $101,079.01 or any other sum because: (a) the penalties to be imposed by agreement between the parties are sufficient to fulfil the objectives of the BCII Act; (b) there is no evidence to establish on the balance of probabilities that: (i) Diploma suffered any damage arising from the contravention; or (ii) if Diploma has suffered any actual damage, that $101,079.01 is the true measure of that damage; (c) Diploma mitigated its losses by completing the project almost 13 months ahead of schedule for which it received a $3.4 million bonus such that no further damages are required to do justice between the applicant and the respondents; (d) Diploma failed to further mitigate the damages claimed in this matter despite notifying the individual subcontractors who took industrial action by letter that amounts collectively exceeding $100,000 were to be deducted from their respective payments. I will consider these submissions in turn. Sufficient that penalties are to be imposed? The penalties are to be paid to the Commonwealth, not to Diploma. It was clearly envisaged by the parties that any compensation ordered to be paid to Diploma would be in addition to the agreed penalties to be paid to the Commonwealth. In terms of the main object in s 3(1) of the BCII Act, Diploma is a building industry participant which is entitled to have its building work carried out fairly, efficiently and productively, free from unlawful industrial action. If it suffers damage as the result of a contravention, it should be compensated for that damage. Section 3(2)(b), (c) and (d) of the BCII Act are relevant here: (2) This Act aims to achieve its main object by the following means: (b) promoting respect for the rule of law; (c) ensuring respect for the rights of building industry participants; (d) ensuring that building industry participants are accountable for their unlawful conduct. If Diploma had brought its own separate proceedings seeking compensation, it would have been no answer for the respondents to say that they had already been ordered to pay penalties to the Commonwealth. Liability to pay civil penalties and liability to pay compensation are quite separate, although they arise from the same contraventions. If a respondent voluntarily paid compensation to a person who suffered damage, this might demonstrate contrition and assist mitigation of penalty. This is not the case here. Was actual damage suffered by Diploma? Mr Philip Schober, Diploma’s Contracts Manager, swore three affidavits in support of the claim for compensation: 29 September 2010, 21 January 2011 and 3 February 2011. Loss of Early Completion Bonus The head contract (Contract) between Diploma and Knoxville Group Ltd was dated 1 July 2008. Clause 35.2, in effect, provides that Diploma shall execute the work under the Contract to Practical Completion by the Date for Practical Completion. The "Date for Practical Completion" is defined in the Contract as the date provided in the Annexure, subject to any extension of time provided for under the Contract. The Annexure to the Contract provides a formula for the calculation of this date: 589 Business Days, in accordance with the construction program, from the date Diploma is given possession of the site. Mr Schober had originally calculated this date to be 30 March 2011. A Deed of Variation of the Contract, I was told, was executed on or about 3 February 2009. The Deed in evidence is undated but it is not in issue that it is operable. The Deed provides that, except for the purposes of early completion bonus, the Date for Practical Completion was varied from 29 April 2011 to 20 May 2010 (cll 6 and 7 of the Deed and cll 3 and 4 of Schedule 1). Accordingly the original Date for Practical Completion under the Contract which was 29 April 2011 remains, despite the variation of the Date for Practical Completion, the relevant date for calculation of any early completion bonus. Clause 35.8 to the Contract provides : If the Date of Practical Completion is earlier than the Date for Practical Completion the principal shall pay the Contractor the bonus stated in the Annexure for every day after the Date of Practical Completion to and including the Date for Practical Completion. The total of the bonus shall not exceed the limit stated in the Annexure. The Annexure to the Contract provides: Bonus per day for Early Practical Completion $9,000 per day Limit of Bonus Not applicable The "Date of Practical Completion" is defined under the Contract as: the date certified by the Superintendent in a Certificate of Practical Completion issued pursuant to clause 42.5, to be the date upon which Practical Completion was reached. Clause 42.5 relevantly provides that the Superintendent shall give to the Contractor and to the Principal a Certificate of Practical Completion certifying the Date of Practical Completion. On 29 June 2010, the Superintendent issued his Certificate of Practical Completion, certifying that the Date of Practical Completion was 15 April 2010. Accordingly, Diploma was entitled, under cl 35.8 of the Contract, to an early completion bonus of $9,000 for every day in the period from 15 April 2010 to 29 April 2011. However, the applicant submits that, as a result of the five days of unlawful industrial action, the Date of Practical Completion was delayed by five days. Extensions of Time for Practical Completion were not available to Diploma for this industrial action. Under cl 35.5 of the Contract, Diploma bore all risk of delay other than for specified causes of delay. The only specified cause related to industrial action was: (a) a strike...which concurrently affects the Site and the building industry on a State-wide or nationwide basis and which is not specific to the Contractor, the Contractor's associates or the Site... The industrial action on 5, 6, 8, 24 and 25 June 2009 at the Hay Street site was not such a strike. As Contracts Manager for Diploma, Mr Schober was responsible for awarding and administering sub-contracts and for the financial control of all of Diploma’s projects. He had responsibility for overseeing financial aspects of Diploma’s projects then under construction or recently completed in Western Australia. He noted in his written evidence that, at the peak of the construction at the Site, Diploma had up to 30 sub-contracting companies working providing a variety of services including demolition, formwork, steel fixing, scaffolding, block laying, plastering, curtain walling, painting, structural steelwork, lift services, electrical, hydraulics, fire services, mechanical services, dry lining, carpet installation, tiling, cabinetry and roofing. He said there were approximately 20 individual contractors at the Site as well as at least 30 sub-contracting companies with whom Diploma had contracts for provision of services and that on average during June 2009 the total number of workers on the Site per day including Diploma’s staff and sub-contractors was approximately 130. He said that some of the sub-contractors on the Site were required to perform “critical path” work which he said referred to the sequence of activities that must be completed on schedule for the entire Project to be completed on schedule. He said that each task on the “critical path” is time critical, and that if a task on the “critical path” is delayed, then the entire Project is delayed by the same amount of time. Objection was taken in the course of the trial by the respondents to this evidence on the basis that the identification of what work was “critical path” work was an opinion or an unsupported conclusion. I ruled that this evidence was neither an opinion nor a conclusion but rather was an assertion of fact supported by other evidence he had given. Nonetheless the same submission has been repeated by the respondents in their closing submissions. I adhere to my earlier ruling. Mr Schober said that the industrial action on 5, 6, 8, 24 and 25 June 2009 were normal working days and that the industrial action meant that the majority of works on the Site stopped on those days with the only work that occurred being administrative and housekeeping work. It is of course a question of fact as to whether there were delays of five days and whether those delays were in relation to “critical path” work. Mr Schober said that the workers who took industrial action on the days to which I have referred were all performing “critical path” work. He said that the Site’s construction time line did not allow for critical path work to be delayed. It is not clear to me that all the workers on the site were doing “critical path” work on the relevant days. Mr Schober stated that in June 2009 the main structural sub-contractors were D&Z Constructions and Ward Post Tensioning who were completing concrete, formwork and reinforcing as well as Micos Curtain Wall Australia Pty Ltd, who were engaged to install a facade. He said that the absence of these trades from the Project on the days of industrial action caused delay to critical path activities resulting in a five day delay to the Project as a whole. He did not advance further evidence in relation to the other sub-contractors. However, his evidence concerning these three sub-contractors is sufficient to establish the delay. Each of them was contracted to perform critical path work on the Project. Whilst Mr Schober accepted that in respect of some critical path work delay could be made up he said that this was not the case in respect to the delays actually caused on the days of the industrial action. The evidence was that particularly in relation to forming up floors it was very difficult to make up for lost time. In fact the time was not made up. Moreover, Mr Paul Day, Diploma’s Project Manager who had day to day responsibilities for the Project at the Site, gave evidence to the same effect, at least concerning D&Z and Wards, when cross-examined during the interlocutory hearing on 17 July 2009. It was part of his job to deliver the Project on time. He said that there is no allowance in the construction timetable for "critical path" work to be delayed and that as a result, if "critical path" work is delayed by 1 day, the completion of the Project will be delayed by 1 day. Significantly Mr Buchan agreed that these 3 sub-contractors performed critical path work on the Site and that their workers had taken industrial action. The respondents point to the evidence of Mr Schober in cross-examination which, they contend, is to the effect that the asserted delay of 5 days was “theoretical”. The evidence was as follows: MS VERNON: So is that five days after 15 April?---No, not five days after 15 April, between 10 and 15 April, when the project, theoretically, could have bee finished, without five days delay. So it’s the cost of them for five days between 10 and 15 April 2010, that you say is the add-on cost; is that right?---Well, the costs – those costs were incurred on those particular days, on 5, 6 and 8 and 24 and 25 June. Yes, but the evidence you just gave us is that you needed to have those people for another five days between 10 and 15 April 2010, to make up for the five days worth of industrial action - - -?---Correct. - - - previously. But, of course, those people had worked on those five days, so you’re talking about, now, some cost at the end; is that right?---Correct. Well, the invoices that you have attached to your affidavit, though, Mr Schover, they’re not for the period from 10 to 15 April 2010, are they?---No. They are actually their costs for the days that they were scheduled to work?---Correct. So how can you actually say that they were required for another five days, between 10 and 15 April?---Because if there wasn’t a five day delay on the job, the job would have been finished on the 10 th and they were still working there on the 15 th . How do you know that? How do you know the job would have finished on the 10 th ?---Only by the – by reviewing, possibly, the program, which if you’ve got a five day delay in the middle of the job, unless it’s – unless that time is made up you’re going to incur that delay at the end. So are you saying that in this case the time was never made up?---Correct. The applicant submits, and I accept, that the effect of this evidence is that, but for the delay, the Project would have finished 5 days earlier. There is nothing “theoretical” about this statement. It is only “theoretical” in the sense that it was based on an hypothesis – what would have happened if there had been no industrial action. The applicant’s case assumes, favourably to the respondents, that the workers from the 3 sub-contractors performing critical path work were able to “pick up where they left off” immediately upon their return to work. For example, the 38 D&Z construction workers who were scheduled on 5 June 2009 to perform the following work, all of which was on the critical path. Jump Level 12 Level 10 deck setting Steel fixing on prefab area Stripping level 7 They all went on strike on 5, 6 and 8 June 2009. It is assumed, most favourably to the respondents, that they were able to perform this work immediately on 9 June 2009 when they resumed work. All that is claimed is one day’s delay for each day of industrial action. The respondents submit that the Deed of Variation of the Contract demonstrated that Diploma had the capacity to accelerate the entire Project to the point of being able to finish more than 12 months early to accommodate the intentions of the Principal. They submit that it is inconceivable that such acceleration was achieved without rescheduling parts of the construction timetable, having subcontractors working overtime and employing more personnel. In fact, the Deed of Variation was dated on or about 3 February 2009: clause 1 of the Amendments to Contract. The acceleration referred to in the Deed was thus already contractually in place some 4 months before the industrial action in June 2009. The respondents submit that this demonstrates that any delay in critical path tasks does not automatically result in a corresponding amount of delay in the overall completion of the Project. However, the acceleration referred to in the Deed resulted from the use of different methodology which, for example, enabled Diploma to start work earlier on demolition in the basement as well as to re-design the structure and place steelwork at a lower level which enabled an earlier start to construction. Despite the changed methodology the Deed of Variation, as I have already mentioned, maintained the original Date for Completion for the purpose of calculation of any early completion bonus. The respondents submit that in the absence of any evidence about whether any of the critical path tasks for June 2009 to be done on the days of industrial action were completed on time, it is impossible to conclude that: (a) the Project could have finished 5 days (or any number of days) earlier than it actually did because Diploma finished the Project almost 13 months ahead of schedule anyway; (b) the failure to have finished 5 days (or any number of days) earlier than it actually did was due to the industrial action occurring 9 months earlier. I do not accept this submission. The evidence of Mr Schober and Mr Day establishes that because the critical path work could not be performed on the 5 days this necessarily meant that the Project was delayed by 5 days from when it otherwise would have been completed. It is, I accept, irrelevant that the Project was in fact finished ahead of the contractual Date for Practical Completion, except that the early completion bonus was enlivened. For every day that Diploma was able to bring forward practical completion, it was entitled to $9,000. But for the industrial action, Diploma would have completed the Project five days earlier. I am satisfied on that basis that Diploma suffered damages of $45,000 in this respect. This is actual damage and not as the respondents submit merely a risk of a loss. Cost of Diploma staff This claim is for the cost of Diploma employing its staff on site for a further five days beyond the period during which they would otherwise have been employed there. The four staff involved are the Project manager, the site manager, the OHS representative and the site clerk. The respondents submit that the claim was articulated by counsel for the applicant, in opening, as a claim “in respect of Diploma’s staff on the 5 days of the industrial action. Counsel for the applicant in oral opening submissions said that because critical path activities could not be undertaken on the five days of the industrial action that Diploma effectively had to work another five days to make up the lost time. This approach was repeated in the course of the hearing. Accordingly the claim is for the cost of employing those staff for a period of five days longer on the Project at the Site than would have been the case but for the admitted contravention. The staff were employed and paid for the five days of industrial action. The total claimed in this regard is $7,991.96 the details of which are explained in Mr Schober's written evidence. The applicant has calculated the cost of these staff as at the time of the industrial action as the measure of these damages. Assuming, as I do, that these wage costs did not go down over time, then it does not matter whether the 5 days of extra wages are measured at the time of the industrial action or the last 5 days on which the staff worked on the Project. The claim in respect of the site manager is only in respect of two days, as Mr Davis took over from the previous site manager in mid- June 2009. This is not a reason for limiting the claim. However, the applicant did not seek to increase the claim. Mr Schober gave evidence in cross-examination that the staff, in respect of whom compensation is claimed, had to work another five days beyond 10 April 2010 when, but for the delays caused by the contraventions, work on the Project would have been completed. I find that each of Mr Davis and Ms Sherrell were required to be on site whilst the site was open including in the five days between 10-15 April 2010. I also find that Ms Newbound would have been required to perform administrative duties related to the Project during those five days. Mr Day left the employ of Diploma more than three months before the completion of the Project. I am not prepared, absent other evidence, to infer that there was another Project manager employed on Site during those five days at the end of the Project. It follows that I would award compensation only in respect to the other three in the sum of $4,608.36 calculated as follows: $ Site Manager: L Davis 1446.22 OHS Rep : L Sherrell 1993.52 Site Clerk: M. Newbound 1168.62 4608.36 Hays Recruitment This claim is for monies paid to Hays Recruitment for the provision of casual labour additional to Diploma’s subcontractors and direct employees carrying out work on the last five days of the Project. The work done by the casual labour was: (a) Site cleaning works; (b) Safety compliance rectification works; (c) Traffic management; (d) Alimak operation; site logistics activities; (e) General housekeeping. The evidence as to the measure of damages comprises the tax invoices from Hays Recruitment for the weeks ending 5 June 2009, 12 June 2009 and 26 June 2009. Mr Schober gave evidence as to how the amount is calculated totalling $16,865.49. Mr Schober gave evidence that staff recruited from Hays Recruitment had to work an extra five days. For reasons I have already stated, I do not regard this evidence as based upon his “theory” that the Project was delayed by 5 days. His evidence as to this was as to matters of fact within his knowledge. I consider it reasonable to infer that the daily cost of recruiting this staff for the additional five days was not less than during the five days of the industrial action. I would allow this claim in full. Material Handling and Scaffolding Costs A tower crane, two Alimak hoists and a forklift were on site on the days of the industrial action, together with scaffolding. The invoices for 5 days totalled $9,707.51. The invoiced costs, as Mr Schober explained, were broken down into daily costs and multiplied by five in respect of the five days of industrial action. Mr Schober's evidence which I accept is that, but for the five days lost, each of these items of equipment would have been returned to the owner five days earlier. I have assumed that the hire cost for this equipment would not have been less for these five extra days. The respondents refer to the following evidence that the equipment: (a) was on site for the whole month of June 2009, including days when no work took place on Site such as Sunday and Public Holidays and was therefore a fixed feature of the Project regardless of when it was actually being used, much like a fixed overhead required regardless; (b) was used by the Hays Recruitment personnel who were engaged in site cleaning, safety rectification etc; (c) could have been kept on site for much longer than anticipated for any number of reasons. None of that evidence or the submissions made in respect to it alters the evidence of Mr Schober, in effect, that but for the contraventions the equipment would have been returned five days earlier than it was, whenever that was. I would allow this claim. Legal Costs Mr Schober stated in his written evidence that as a result of the industrial action, Diploma was required to engage the services of Norton Rose, a firm of lawyers, (formerly Deacons) to provide advice on a range of industrial relations issues. The legal work done is set out in various invoices tendered in evidence. Each of the invoices is marked to the attention of Mr Paul Day. The relevant work commenced on 8 June 2009 and concluded on 23 November 2009. The initial claim has been reduced to $21,514.05, after deducting $1,787.50 in respect of legal work done which did not result from the industrial action. The Deacons fee notes disclose a range of action taken by them on behalf of Diploma in relation to the obtaining of compensation arising out of the industrial action. They disclose personal conferences, correspondence, telephone attendances, review of relevant law in relation to compensation under the BCII Act, the obtaining of evidence for the purposes of such a claim, attendance at this Court in relation to the application by the applicant for an interlocutory injunction, considering my reasons for the grant of such an injunction, preparation of evidence to be tendered at the compensation hearing, review of relevant documents for the purposes of the compensation hearing, meetings with counsel, considering affidavits and advice generally. In Marks v GIO Australia Holdings Ltd to which I earlier referred, as a useful analogue the majority in the High Court said, albeit in respect to s 82 TPA, at [34]: It contains no stated limitations of the kinds of loss or damage that may be recovered and contains no express indication that some kinds of loss or damage are to be regarded as too remote to be recovered. This has, since, been restated by the High Court: Henville v Walker at 501-2; I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at [42] - [48] ; Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 204 ALR 26 at [44] . As was observed recently by the Full Court, referring to a long line of authority, in Gray v Sirtex Medical Limited [2011] FCAFC 40 ; (2011) 276 ALR 267 at [15] a distinction has long been drawn between damages and legal costs such that a successful plaintiff cannot recover its costs of the proceedings from the defendant even though the defendants’ wrongful act caused the plaintiff to incur those costs and, at [16], that a successful plaintiff or defendant cannot recover the difference between the legal cost awarded in its favour, or withheld, as the case may be, in one civil proceeding and the legal costs it actually incurred in that proceeding, as damages, in a subsequent civil action against the same opponent. However, neither example is the position here. Later, at [30] in Gray v Sirtex Medical Limited, the Full Court noted what is a longstanding principle that a defendant’s costs of an action may be recovered as damages against a third party in separate proceedings. Again although that is not precisely what has actually occurred in this case it is, in principle, a creature of the same kind. Compensatory damages are being sought, by virtue of the statutory discretion under s 49(1)(b) of the BCII Act on behalf of a third party from the defendants in the proceeding. For the very reason that it is not a party Diploma cannot seek its legal costs in assisting the applicant to pursue that remedy on its behalf as costs in the proceeding. There will ordinarily be a question as to whether the legal costs were reasonably incurred. I consider that Diploma acted reasonably in obtaining the legal advice and assistance which it did from Deacons. I am satisfied that, but for the contraventions by the respondents, there would have been no necessity for that to have occurred. In my view, Diploma was entitled to obtain that advice in relation to its rights and remedies and in particular to assist the applicant in the claim, in effect made on behalf of Diploma in these proceedings, for compensation. I accept the submission of the applicant that to the extent that the work done by Deacons assisted these proceedings, as I find that it did, then the costs of the applicant have, to a considerable extent, been reduced. The applicant will not be entitled in its claim for costs in these proceedings to claim for costs for work done by Deacons. Diploma, on the other hand, is not a party to the proceedings and is accordingly unable to obtain a costs order in its favour in respect of them. I find that the work done by Deacons was reasonably incurred by Diploma in assisting the applicant both to prove the contraventions of the civil penalty provisions in order to establish statutory liability against the respondents to pay compensation under s 49(1)(b) of the BCII Act. The costs incurred by Diploma with Deacons are properly characterised as damages. The fact that Diploma, “chose” to get that legal advice does not, contrary to the respondents’ submission, break the chain of causation. Indeed that very choice I regard as a quite reasonable decision on the part of Diploma to assist the applicant who was running an action for both civil penalties as well as for compensation which would be payable to Diploma. That course seems to me to have been quite a sensible approach in combining the claims in one action rather than in separate actions which could have occurred. Indeed had that alternative course been followed it may well have resulted in greater costs to the respondents having to confront two separate actions. This would likely also have occasioned greater cost to the Court. The statutory entitlement for compensation under s 49(1)(b) of the BCII Act can only be realised if the person which suffers damage is able to put together the evidence to support its claim, both in terms of establishing the contravention and the resulting damage. It is, in effect, a means of achieving the statutory object under s 3(1) of the BCII Act to facilitate such claims: s 3(2)(b), (d) and (3). Diploma’s legal costs are damage suffered as a result of the contraventions the subject of the proceeding and are in my opinion compensable under s 49(1)(b). The applicant submits that if there is no proper basis for the exercise of my discretion under s 49(1)(b) of the BCII Act because the legal costs are not “damage” under that provision then I should make an order for payment of these costs as an alternative under s 49(1)(c) which provides that the Court may make any other order that it considers appropriate. I do not consider that it would be appropriate to award compensation, characterised by the applicant as damage suffered as a result of the contraventions under this provision, were it not available under s 49(1)(b). Did Diploma mitigate its losses The respondents submit that Diploma completed the construction program “slightly over 12 months ahead of schedule” which of itself demonstrates some mitigation of damage, albeit unintentionally. They submit that the early completion almost 13 months ahead of schedule establishes that Diploma did not in fact suffer any actual damage as a result of the industrial action, and therefore the contravention by the respondents of the BCII Act. As to those submissions, which I reject, there is no evidence as to how much, if any, of the early completion bonus in fact paid to Diploma was profit. Moreover I have found that the 5 days of unlawful industrial action resulted in Diploma being prevented from earning a further bonus in respect of that time. That loss is actual damage suffered by Diploma. It matters not that Diploma was in other ways successful in obtaining an early completion bonus. Did Diploma fail to further mitigate its losses? Diploma issued letters to its subcontractors on 5 June 2009 and 24 June 2009 stating that various sums were to be automatically deducted from the entitlements of those subcontractors for their part in industrial action on the Site in June 2009. These amounts, if they had been deducted as foreshadowed by Diploma, totalled approximately $68,000 for 5, 6 and 8 June 2009 and over $45,000 for 24 – 25 June 2009. It was the evidence of Mr Schober that although these letters were sent they were not followed up with action against the sub-contractors because deducting the money was too onerous a task and because Diploma had to continue to work with these subcontractors. The respondents submit that Diploma had a contractual basis for recovering any losses occasioned from the lack of productivity on the Site in June 2009 from the subcontractors owing to the industrial action but it failed to take those steps necessary to mitigate its losses and cannot now be compensated accordingly from the respondents. I do not agree. Mr Schober stated that the threatening letters written by Diploma to its sub-contractors were part of Diploma’s strategy to get the workers back to work as soon as possible. The workers on strike were not employed by Diploma, but by its various sub-contractors. It was the workers who went on strike, not their respective employers, the sub-contractors. The fact that Diploma did not “follow through” with its threats after the workers went back to work was, I accept, perfectly understandable – the objective of the letters had been achieved and the construction of the Project had resumed. There is no statutory obligation for a person suffering damage as a result of contraventions of the BCII Act such as occurred here to pursue potential but untested legal remedies with the attendant commercial risk. Contractual disputes with subcontractors carry a risk of further disruption to the Project. Mr Schober said that Diploma had to maintain working relationships with the sub-contractors, not only on the Project but also in relation to future work. The question is whether damages have been suffered by Diploma as a result of the contraventions. I have found that they were. For these reasons I would order the respondents to pay compensation to Diploma in the amount of $97,695.41 comprised of: $45,000 – loss of early completion bonus; $4,608.36 – wages of Diploma employees; $16,865.49 – hire costs of Hays Recruitment temporary personnel; $9,707.51 – hire cost of certain equipment; $21,514.05 – legal costs paid to Deacons. I would also order that the first respondent pay interest on the above amount of compensation for a period and at a rate to be agreed between it and the applicant. If an agreement is not reached within 14 days of order then there will be liberty to those parties to apply as to the amount of interest to be paid. The respondents should also be liable for the applicant’s costs of this proceeding on the issue of penalties. The CFMEU should pay the applicant’s costs on the issue of compensation. Failing agreement these costs are to be taxed. I certify that the preceding two hundred and seventeen (217) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 21 July 2011 TABLE A REF NO. CASE NAME AND CITATION JURISDICTION AND JUDGE DATES OF RELEVANT CONDUCT NATURE OF CONDUCT DATE OF JUDGMENT ON LIABILITY & PENALTY PENALT(IES) IMPOSED & NUMBER OF CONTRAVENTIONS INDUSTRIAL ACTION CASES WESTERN AUSTRALIA Leighton Contractors Pty Ltd v CFMEU (No 4) [2006] WASC 317 ; (2006) 164 IR 375 Supreme Court of Western Australia Le Miere J 9 March 2005 – February 2006 Rolling series of unlawful industrial actions constituted by unauthorised meetings and strikes or work bans on the New Metro Rail City Project, Perth Agreed statement of facts and agreed penalties proposed. Penalty decision 3 November 2006 $150,000 comprising: $90,000 against the CFMEU (18 contraventions of s. 38 BCII Act). $30,000 against the CFMEUW (5 contraventions of s. 38 BCII Act). $30,000 against McDonald (16 contraventions of s. 38 BCII Act). Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169 Federal Court of Australia Dowsett J 17,18 and 25 August 2005 At the Ravensthorpe nickel mine construction project in WA, 400 workers went on strike for 48 hours following a meeting with CFMEU officer McDonald and organiser Powell. A week later, Powell conducted a meeting and 20 workers subsequently went on strike for 24 hours. Agreed statement of facts Penalty decision 23 May 2008 $35,000 comprising: $18,000 against the CFMEU ($12,000 for 1 contravention of s. 38 BCII Act; $5,000 for 1 contravention of s. 178 WRA; and $1,000 for 1 contravention of s. 170MN WRA) $12,000 against the CFMEUW (1 contravention of s. 38 BCII Act) $3,500 against Powell ($2,500 for 1 contravention of s. 38 BCII Act; $1,000 for1 contravention of s.170MN WRA). $1,500 against McDonald (for 1 contravention of s. 170MN WRA – engage in industrial action). VICTORIA Cruse v Multiplex Limited [2008] FCAFC 179 ; (2008) 172 FCR 279 (appeal) Full Court Federal Court of Australia Gray, Goldberg and Jessup JJ 5 and 6 August 2003 CFMEU shop steward at Concept Blue site made a claim for strike pay and organised and engaged in industrial action with intent to coerce Multiplex to pay strike pay. Agreed statement of facts Appeal decision 5 November 2008 On appeal: $2,500 against the CFMEU (1 contravention of s. 187AB(1)(a) and s. 187AB(1)(b) WRA) declarations against Thorson). Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 (appeal) Full Court Federal Court of Australia Marshall, Lander and Jessup JJ 5, 6, 25 and 26 August 2003 Through its shop stewards and organisers, the CFMEU made a claim for strike pay and organised and took industrial action - including later bans on the use of forklifts and access to balconies - with intent to coerce Caelli to make strike payments. Agreed statement of facts Appeal decision 14 May 2007. On appeal, $11,000 comprising: $5,000 and declarations against the CFMEU (1 contravention of s. 187AB(1)(a) WRA and 3 contraventions of s. 187AB(1)(b) WRA). declarations against Crnac and Spernovasilis (1 contravention of s. 187AB(1)(a) WRA and 3 contraventions of s. 187AB(1)(b) WRA). Cahill v CFMEU [2008] FCA 495 Federal Court of Australia Marshall J 11, 13, 14 and 18 May 2004 Through its organiser and delegate, the CFMEU made a claim for strike pay and organised, threatened and took industrial action – including a ban at a separate site - with intent to coerce Bovis to pay strike pay. Agreed statement of facts Penalty judgment 11 April 2008. $4,000 against the CFMEU (1 contravention of each of ss. 187AB(1)(a) and 187AB(1)(b) WRA). Declarations against Setka and Tadic (1 contravention of each of ss. 187AB(1)(a) and 187AB(1)(b) WRA). Martino v CFMEU and Maher (No. T02692326) Melbourne Magistrates Court Magistrate Hawkins 26 and 28 October 2004 A CFMEU delegate prevented a subcontractor (Civiltest) from entering the Allegro Apartments site at Footscray, Melbourne, to perform soil testing services unless Civiltest agreed to enter an EBA with the CFMEU. Agreed statement of facts Penalty judgment 10 May 2006. $13,950 comprising: $13,500 against the CFMEU (1 contravention of s. 170NC WRA). $450 against Maher (1 contravention of s. 170NC WRA). Cruse v CFMEU & Anor [2007] FMCA 1873 Federal Magistrates Court Burchardt FM 22-24 September 2005 Unlawful industrial action organised by the CFMEU involving 288 people at the Roche Mining Mineral Sands Separation Plant in Hamilton for 2.5 days. Agreed statement of facts Penalty decision 14 November 2007 $42,000 comprising: $35,000 and declarations against the CFMEU (1 contravention of each of s. 38 BCII Act and EBA). $7,000 and declarations against Stewart ½ suspended (1 contravention of each of s. 38 BCII Act and EBA). Stuart-Mahoney v CFMEU (2008) 177 IR 61; [2008] FCA 1426 Federal Court of Australia Tracey J 6-13 October 2005 A CFMEU delegate and organiser recommended and supported an overtime ban with intent to coerce Hooker Cockram to employ an apprentice on the police and law courts complex in Morwell, Victoria. Agreed statement of facts Penalty decision 19 September 2008. $63,000 comprising: $55,000 and declarations against the CFMEU ($35,000 for 1 contravention of s. 43 BCII Act; $20,000 for 1 contravention of s. 38 BCII Act). $8,000 and declarations against Parker wholly suspended ($6,000 for 1 contravention of s. 43 BCII Act, $2,000 for 1 contravention of s. 38 BCII Act). Duffy v CFMEU [2008] FCA 1804 (No 2) [2009] FCA 299 Federal Court of Australia Marshall J 20 October 2005 A CFMEU organiser procured a ban on concreting and earthworks because of the lack of a female toilet while a female worker was present and the absence of a site contamination report. The bans were effectively lifted by the afternoon of the next day. Decision on penalty 31 March 2009. $5,500 against the CFMEU (1 contravention of s. 38 BCII Act). Stuart v CFMEU [2009] FCA 1119 (first instance) [2010] FCAFC 65 (appeal) Federal Court of Australia Gray J Full Court Moore, Besanko and Gordon JJ 19 September and 3 October 2006 A CFMEU shop steward refused to induct employees of a subcontractor without a CFMEU EBA, stated that the work they were to do was CFMEU work, not AMWU work, and organised a stop work meeting of employees two weeks later, with intent to apply undue pressure to the subcontractor to make an EBA. Agreed statement of facts First instance penalty decision 2 October 2009. Appeal decision: 8 June 2010. On appeal: $25,000 (increased from $5,000) and declarations against the CFMEU (1 contravention of s. 44 BCII Act with no additional penalty for s. 38 contravention) Declarations against Corbett (1 contravention of each of ss. 44 and 38 BCII Act). Cruse v CFMEU & Anor (2009) 182 IR 60; [2009] FMCA 236 Federal Magistrates Court Turner FM 25 September 2006 Over 80% of employees walked off the job following a CFMEU organiser’s conducting a 30 minute stop-work meeting during working hours. Agreed statement of facts. Penalty decision 9 April 2009. $38,500 comprising: $27,500 and declarations against the CFMEU (1 contravention of each of s. 38 BCII Act and EBA). $11,000 and declarations against McLoughlin ½ suspended (1 contravention of each of s. 38 BCII Act and EBA). Cruse v CFMEU and Anor [2009] FCA 787 Federal Court of Australia Marshall J 6 October 2006 A CFMEU senior vice president held a stop work meeting with crane workers at 3:10 pm at a Melbourne site. Following this, a ban was placed on crane installation work for little over an hour. Agreed statement of facts and agreed penalties Penalty decision 29 July 2009. $15,000 comprising: $10,000 and declarations against the CFMEU (1 contravention of s. 38 BCII Act). $5,000 and declarations against Washington (1 contravention of s. 38 BCII Act). Cozadinos v CFMEU, Berardi and Mates [2010] FCA 48 Federal Court of Australia Marshall J 8 March 2007 A CFMEU organiser engaged in unlawful industrial action and took action with intent to coerce a contractor to employ a building employee. Agreed statement of facts Penalty decision 9 February 2010. $45,000 comprising: $40,000 against the CFMEU ($20,000 for 1 contravention of s. 38 BCII Act and $20,000 for 1 contravention of s. 43 BCII Act). $5,000 against Mates ($2,000 for 1 contravention of s. 38 BCII Act and $3,000 for 1 contravention of s. 43 BCII Act). Cozadinos v CFMEU & Anor [2008] FMCA 1591 [2009] FMCA 272 Federal Magistrates Court Burchardt FM 19 March 2007 A CFMEU shop steward prevented a delivery of materials out of mischief and/or malice to spite a site manager. Liability decision 10 December 2008. Penalty decision 7 May 2009. $9,600 comprising: $5,000 and declarations against the CFMEU (1 contravention of s. 38 BCII Act) and declarations (1 contravention of s. 494 WRA). $4,600 and declarations against Johnston (1 contravention of s. 38 BCII Act) and declarations (1 contravention of s. 494 WRA) Gregor v CFMEU and Berardi [2009] FMCA 1266 Federal Magistrates Court O’Sullivan FM 19 July 2007 After a head contractor explained it need not be party to a CFMEU EBA, a CFMEU organiser arranged for workers on site to stop work and attend a meeting. The organiser encouraged attendees to leave site for the rest of the day. Agreed statement of facts Penalty decision 16 December 2009 $8,500 comprising: $7,500 and declarations against the CFMEU (1 contravention of s. 38 BCII Act). $1,000 and declarations against Berardi wholly suspended (1 contravention of s. 38 BCII Act) White v CFMEU and McLoughlin [2010] FMCA 693 Federal Magistrates Court Burchardt FM 19 February 2008 A CFMEU organiser imposed a ban on steel fixing for a concrete pour by employees of a subcontractor. The ban interrupted the pour and was imposed to effect his intention to remove an elected OHS representative. Agreed statement of facts Penalty decision 21 September 2010 $46,200 comprising: $38,500 and declarations against the CFMEU (1 contravention of s. 38 BCII Act) $7,700 and declarations against McLoughlin (1 contravention of s. 38 BCII Act) Wotherspoon v CFMEU, Stephenson and Slater [2010] FMCA 184 Federal Magistrates Court Turner FM 30 April 2008 Respondents engaged in meetings and stoppages on 30 April 2008 on Fulton Hogan Monash Freeway Road Widening Project as a result of which, employees withdrew their labour and failed to perform their work Agreed statement of facts and agreed penalties Penalty decision 22 March 2010. $31,000 comprising: $25,000 against the CFMEU (1 contravention of s. 38 BCII Act) $5,000 against Stephenson (1 contravention of s. 38 BCII Act). $1,000 against Slater wholly suspended (1 contravention of s. 38 BCII Act). Williams v AMWU, CFMEU, Powell, Mavromatis & Pizarro [2010] FCA 754 Federal Court of Australia Jessup J 5 February – 29 April 2009 At the West Gate Bridge site, respondents authorised and organised industrial action, took action with intent to coerce John Holland to employ former employees of a subcontractor, and took action with intent to coerce John Holland and the subcontractor to make EBAs. Agreed penalties Penalty decision 28 July 2010. $1,325,000 comprising: $858,000 against the CFMEU ($535,000 for 8 contraventions of s. 43 BCII Act, $247,000 for 9 contraventions of s. 44 BCII Act, $76,000 for 2 contraventions of s. 38 BCII Act). $71,000 against Powell ($45,000 for 4 contraventions of s. 43 BCII Act, $21,000 for 5 contraventions of s. 44 BCII Act, $3,000 for 1 contravention of s. 38 BCII Act). $71,000 against Stephenson ($45,000 for 5 contraventions of s. 43 BCII Act $16,000 for 5 contraventions of s. 44 BCII Act, $10,000 for 1 contravention of s. 38 BCII Act). $298,000 against the AMWU $27,000 against Mavromatis (AMWU) John Holland Pty Ltd v Benstead & CFMEU [2009] FMCA 1065 Federal Magistrates Court Turner FM 11 and 24 March 2009 On two separate occasions at an Epping construction site, a CFMEU officer visiting on site with OH&S concerns was involved in employees’ failure to work from morning onwards. Agreed statement of facts and agreed penalties Penalty decision 12 November 2009. $25,000 against the CFMEU (2 contraventions of s. 38 BCII Act). John Holland v CFMEU, Travers, O’Grady and Reardon [2009] FMCA 1248 Federal Magistrates Court of Australia O’Sullivan FM 24 March 2009 Three CFMEU officials at two sites within John Holland’s Tullamarine Airport project encouraged and directed the cessation of work by 180 workers. Agreed statement of facts and agreed penalties Penalty decision 14 December 2009. $23,000 and declarations against the CFMEU (2 contraventions of s. 38 BCII Act). Wotherspoon v CFMEU, Reardon and Hudson Federal Magistrates Court O’Sullivan FM 1 April 2009 Two CFMEU officials shut down the Walter and Eliza Hall Institute site in connection with a dispute with a head contractor over a height allowance. Agreed statement of facts and agreed penalties Penalty decision 11 October 2010 $27,500 and declarations comprising: $22,500 and declaration against the CFMEU (1 contravention of s. 38 BCII Act) $2,500 and declaration against Reardon (1 contravention of s. 38 BCII Act) $2,500 and declaration against Hudson (1 contravention of s. 38 BCII Act) NEW SOUTH WALES Alfred v CFMEU (D8498/02) NSW District Court Hughes J 14-15 October 2002 The CFMEU took unlawful industrial action to coerce a head contractor at the Sutherland Hospital site, NSW, to sign a certified agreement with the CFMEU. Penalty decision 30 March 2004. $2,000 against the CFMEU (1 contravention of s. 170NC WRA). Alfred v Walter Construction Group Limited [2005] FCA 497 (penalty) Federal Court of Australia Branson J April 2003 The CFMEU, an organiser and a site delegate threatened to disrupt work at the Wollongong Sewerage Treatment Plant Project, NSW because a subcontractor chose not to enter the CFMEU endorsed certified agreement (“EBA”). The CFMEU engaged in conduct calculated, and effective, to prevent the subcontractor from continuing to work on the site Agreed statement of facts Penalty decision 3 May 2005. $7,500 and declarations against the CFMEU (3 contraventions of s. 170NC WRA). A & L Silvestri Pty Ltd v CFMEU [2007] FCA 1047 (liability) [2008] FCA 466 (penalty) Federal Court of Australia Gyles J 20 October 2003 21 October 2003 Three CFMEU organisers took industrial action and threatened further industrial disruption against a head contractor and an earthmoving subcontractor on a Wollongong site because they did not have industrial agreements with the CFMEU. The officials also threatened to shut down the site if the subcontractor was not removed. Liability decision 13 July 2007. Penalty decision 11 April 2008. $7,300 comprising: $5,500 and declarations against the CFMEU (1 contravention of s. 170NC WRA). $1,800 and declarations against Lane (1 contravention of s. 170NC WRA). Alfred v Wakelin (No 1) [2008] FCA 1455 (CFMEU) (No 2) [2008] FCA 1543 (AWU) (No 4) [2009] FCA 267 (AWU) Federal Court of Australia Jagot J 15-18 October 2005 10-11 November 2005 A strike of hundreds of AWU workers over food and hygiene standards at the kitchen and mess at the camp. A second strike of CFMEU and AWU workers following an authorised stop work meeting. Agreed statement of facts with CFMEU. CFMEU penalty decision 25 September 2008 AWU liability decision 17 October 2008. AWU penalty decision 26 March 2009. $64,100 comprising: $8,000 against the CFMEU (1 contravention of s. 38 BCII Act). $1,100 against Wakelin (1 contravention of s. 38 BCII Act). $28,000 and declarations against the AWU (2 contraventions of each of s. 38 BCII Act and EBA) $18,000 and declarations against the AWU NSW (2 contraventions of s. 38 BCII Act). $9,000 and declarations against O’Connor (2 contraventions of each of s. 38 BCII Act and EBA) QUEENSLAND Hamberger, Employment Advocate v CFMEU [2000] FCA 1923 ; (2000) 103 IR 249 (liability) [2002] FCA 585 (penalty) [2003] FCAFC 38 ; (2003) 127 FCR 309 (appeal) Federal Court of Australia Cooper J Full Court Spender, Drummond and Marshall JJ 29 January and 26 February 1999 The CFMEU and its site organisers on two separate occasions attempted to get an employer to remove an employee because the employee had refused to join the CFMEU. The CFMEU threatened to engage in unlawful industrial action if the employer did not remove the employee Liability decision 22 December 2000. Penalty decision 9 May 2002. Appeal decision. On appeal, $12,750 comprising: $3,000 (reduced from $7,500) and declarations against the CFMEU (1 contravention of each of ss. 298P(3)(a) and 298P(3)(b) WRA). $7,500 and declarations against the BLF QLD (1 contravention of each of s. 298P(3)(a) and 298P(3)(b) WRA). $1,500 and declarations against McHugh (1 contravention of each of s. 298P(3)(a) and 298P(3)(b) WRA). $750 and declarations against Ravbar (1 contravention of each of s. 298P(3)(a) and 298P(3)(b) WRA). COERCIVE CONDUCT CASES VICTORIA Cruse v CFMEU [2008] FCA 1267 (liability) (No 2) [2008] FCA 1637 (penalty) Federal Court of Australia Marshall J May 2005 A CFMEU delegate made false and misleading statements regarding a Hamilton building contractor’s obligation to join the union and negated the contractor’s choice whether to enter into a certified agreement with the CFMEU. Liability decision 22 August 2008. Penalty decision 5 November 2008. $4,000 against the CFMEU (1 contravention of s. 170NC WRA) and declarations (1 contravention of s. 290SC WRA). Declarations against Fry (1 contravention of each of ss. 170NC and 298SC WRA). Draffin v CFMEU [2009] FCA 243 (first instance) [2009] FCAFC 120 (appeal) Federal Court of Australia Marshall J Full Court Goldberg, Jacobson and Tracey JJ November 2005 A CFMEU delegate, organiser and branch secretary admitted coercing a head contractor not to allocate traffic management responsibilities to a subcontractor whose employees were on AWAs, discriminating against the subcontractor and encouraging the head contractor to terminate the subcontract because of the AWAs.. Agreed statement of facts. CFMEU penalty decision 17 March 2009. Appeal decision 10 September 2009. On appeal, $132,750 comprising: $52,750 (increased from $22,750) against the CFMEU ($50,000 for 1 contravention of s. 43 BCII Act, $2,000 for 1 contravention of s. 45 BCII Act, $750 for 1 contravention of s. 298P WRA). $10,000 ½ suspended (increased from $2,000 wholly suspended) and declarations against Oliver ($8,000 for 1 contravention of s. 43 BCII Act, $1,250 for 1 contravention of s. 45 BCII Act and $750 for 1 contravention of s. 298P WRA). $10,000 ½ suspended (increased from $2,000 wholly suspended) against Benstead ($8,000 for 1 contravention of s. 43 BCII Act, $1,250 for 1 contravention of s. 45 BCII Act and $750 for 1 contravention of s. 298P WRA) and declarations $10,000 against Allen ½ suspended ($8,000 for1 contravention of s. 43 BCII Act, $1,250 for 1 contravention of s. 45 BCII Act and $750 for 1 contravention of s. 298P WRA) and declarations * NB special leave to appeal to High Court was refused on 10.12.10 Cahill v CFMEU (No 3) (2009) 178 IR 89; [2009] FCA 52 (liability) [2009] FCA 1040 (penalty) [2010] FCAFC 39 (appeal) Federal Court of Australia Kenny J Full Court Moore, Middleton and Gordon JJ 15, 17 and 21 February 2006 A CFMEU organiser demanded that a new contractor on site employ two former shop stewards and the OH&S officer who had been employed by the previous contractor. The organiser demanded that the site’s crane crew shut down the crane and leave the site, which they did. His intention in shutting down the crane operations was to coerce Hardcorp, to re-employ the former CFMEU shop stewards and OH& S officer. Liability decision 5 February 2009. Penalty decision 16 September 2009. Appeal decision 18 May 2010. On appeal, upholding first instance, $85,500 comprising: $75,500 and declarations against the CFMEU (3 contraventions of s. 43 BCII Act). $10,000 and declarations against Mates (3 contraventions of s. 43 BCII Act). Williams v CFMEU [2009] FCA 223 (liability) (No 2) (2009) 182 IR 327; [2009] FCA 548 (penalty) [2009] FCAFC 171 (appeal) Federal Court of Australia Jessup J Federal Court of Australia Full Court Moore, Middleton and Gordon JJ 31 July 2006 A CFMEU organiser procured and threatened to procure a stoppage of work with intent to coerce a builder to employ or engage a building employee or contractor. Liability decision 13 March 2009. Penalty decision 28 May 2009. Appeal decision 7 December 2009. On appeal, $42,500 comprising: $35,000 (reduced from $100,000) against the CFMEU (referable to 1 contravention of s. 43 BCII Act). $7,500 (reduced from $15,000) against Mates (referable to 1 contravention of s. 43 BCII Act). NEW SOUTH WALES Hadgkiss v Blevin [2004] FCA 697 (liability) [2004] FCA 917 (penalty) Federal Court of Australia Conti J November 2002 The CFMEU, one of its organisers and one of its site delegates at the Clifton Apartments building at Pyrmont, NSW, coerced an employee of a building contractor to join the CFMEU. The employee initially refused to join the union but the employer subsequently paid his union dues on his behalf. Liability decision 1 June 2004. Penalty decision 13 July 2004. $7,700 comprising: $5,500 against the CFMEU (1 contravention of s. 298P(3) WRA). $1,100 against McGahan (1 contravention of s. 298P(3) WRA).. $1,100 against Blevin (1 contravention of s. 298P(3) WRA).. * NB under appeal Alfred v CFMEU & Ors [2009] FMCA 613 (liability) (No 2) [2009] FMCA 1003 (penalty) Federal Magistrates Court Smith FM 11 April 2006 A CFMEU organiser threatened to organise or take action (including bankruptcy, auditing and making life a misery) against a subcontractor with intent to coerce him and his workers to become members of the CFMEU. Liability decision 10 July 2009. Penalty decision 20 October 2009 $28,600 comprising: $13,000 against the CFMEU (1 contravention of s. 789 WRA). $13,000 against the CFMEU (NSW) (contravention of s. 789 WRA). $2,600 against Manna (1 contravention of s. 789 WRA). QUEENSLAND Wilson v Nesbit and CFMEU [2009] FCA 1574 Federal Court of Australia Dowsett J 23 June 2008 A CFMEU organiser made threats to a company to ban it from any building site in Australia and have it audited (costing at least $30,000) with intent to coerce the company to terminate its EBA and make a new EBA with the CFMEU. Agreed statement of facts Penalty decision 23 December 2009. $49,000 comprising: $40,000 and declarations against the CFMEU (1 contravention of s. 44 BCII Act.) $9,000 and declarations against Nesbit (contravention of s. 44 BCII Act). TABLE B REF NO CASE NAME AND CITATION JURISDICTION AND JUDGE DATES OF RELEVANT CONDUCT NATURE OF CONDUCT DATE PENALTY IMPOSED PENALTY IMPOSED AND CONTRAVENTIONS CRIMINAL CONVICTIONS Zaknich v McDonald [2000] WASC 151 (liability proceedings, 15, 16 and 17 May 2000) Supreme Court of Western Australia Scott J 20 July 1999 McDonald convicted of contempt of court. McDonald entered a building site in East Perth without giving 24 hours notice and conducted a meeting with employees. This action breached an undertaking he signed on 7 December 2008. 15 June 2000 $2,000 fine Criminal Code Act Compilation Act 1913 (WA), Appendix B – Criminal Code Act 1913 (WA), s. 7 McDonald Nos. 23803, 23806 and 27327 (Police proceedings, 9 July 2009) Magistrates Court of Western Australia Magistrate Packington 14 February 2007 22 February 2007 24 April 2007 McDonald pleaded guilty and was convicted of three charges of criminal trespass for unlawfully entering three building sites in Perth. 9 July 2009 $10,000 fine Criminal Code Act Compilation Act 1913 (WA), Appendix B - Criminal Code Act 1913 (WA), Schedule – The Criminal Code , s. 70A Wilson v McDonald No. 23804 (Police initial proceedings, 22 October 2007) [2009] WASCA 39 (Appeal proceedings 19 September 2008) Re-sentencing hearing, 7 May 2009, Magistrate Randazzo Magistrates Court of Western Australia Magistrate Randazzo Supreme Court of Western Australia (Court of Appeal) Martin CJ, Wheeler JA and Beech AJA Magistrates Court of Western Australia Magistrate Randazzo 19 February 2007 McDonald convicted of criminal trespass on a building site in Joondalup. He remained on the site after any licence to be on that site had been expressly revoked and he had no lawful excuse for remaining on site. 7 May 2009 $1,500 fine Criminal Code Act Compilation Act 1913 (WA), Appendix B - Criminal Code Act 1913 (WA), Schedule – The Criminal Code , s. 70A RIGHT OF ENTRY DECISIONS Office of the Employment Advocate and Joseph McDonald (R2000/60002) PR 906747 Australian Industrial Relations Commission Full Bench - Vice President Ross, Senior Deputy President Lacy, Commissioner Gregor (Perth) 20 July 1999, 13, 14, 15 and 16 September 1999, 18 October 1999, 5 November 1999, 8 November 1999, 21 and 22 February 2000, 9 May 2000, 9, 19 and 20 June and 4 July 2000 An application was made to revoke McDonald’s Federal permit to enter and inspect premises, issued pursuant to s.285A(1) of the Workplace Relations Act 1996 (Cth). On various dates, McDonald entered a number of construction sites in Western Australia and acted in an improper manner. By consent, the parties proposed that his permit be revoked. The AIRC endorsed this agreement. 19 July 2001 Federal right of entry permit revoked s. 285C(2) WR Act s. 285D(2) WR Act Joseph Lee v Joseph McDonald RE2005/1302) 2006 WAIRC 04220 (13 February 2004, 2 November 2005, 17 February 2006, 19 April 2006) Western Australian Industrial Relations Commission Commissioner Gregor 22 November 2002 An application was made to revoke McDonald’s State permit, issued pursuant to s.49J(1) of the Industrial Relations Act 1979 (WA). McDonald acted in an improper manner at a building site in East Perth. He was aggressive and threatening and used physical force against employees to try and gain entry onto the site. He also attempted to incite another union member to unlawfully assault the employees. 21 April 2006 State right of entry permit revoked. s. 49J(5) IR Act Radisich v Buchan, Heath, Molina and CFMEU [2008] AIRC 324 (penalty) PR984581 (penalty) Australian Industrial Relations Commission Lacy SDP 14 and 22 February and 24 and 27 April 2007 CFMEU organisers abused the right of entry system by their conduct at the Armadale Shopping Centre site, on 14 February 2007, at the Parliament Place site on 22 February 2007, and at Q-Con’s Condor Towers site on 24 and 27 April 2007. Settlement and agreed penalty orders proposed. Penalty decision 18, 20 November 2008 For abuse of ROE under s. 770 WR Act: Permit of Buchan suspended for 3 months (plus 2 mths suspended suspension) All CFMEU (C&G Div, WA Div Branch) permits subject to condition not to enter or remain on site with McDonald Schedule A WESTERN AUSTRALIA RESPONDENTS’ REPLY 1. Leighton Contractors Pty Ltd v CFMEU CFMEU $90,000 - 18 contraventions of s38 BCII Act, comprised of meetings during working hours, bans on overtime and strikes of varying duration. McDonald $30,000 - 16 contraventions of s38 BCII Act as above. Supreme Court of Western Australia Le Miere J (2006)164 IR 375 penalty proceedings, 3 November 2006) 2. Temple v Powell Federal Court CFMEU $1,000 - 1 contravention of s170MN WR Act (initially set at $3,500, but reduced in recognition that it was constituted by same conduct as s178 WR Act breach) ($5,000 1 contravention of s178 WR Act –irrelevant ) $12,000 - 1 contravention of s38 BCII Act McDonald $1,500 - 1 contravention of s170MN WR Act Dowsett J [2008] FCA 714 ; (2008) 169 FCR 169 (penalty proceedings, 23 May 2008) VICTORIA 3. Pine v Multiplex Constructions (Vic) Pty Irrelevant Ltd Cruse v Multiplex Limited Federal Court [2005] FCA 1428 (Multiplex penalty proceedings, 11 October 2005, Merkel J) [2007] FCA 2015 (CFMEU penalty proceedings, 17 December 2007, North J) [2008] FCAFC 179 ; (2008) 172 FCR 279; (2008) 177 IR 189; (ABCC appeal re CFMEU penalty proceedings, 5 November 2008, Gray, Goldberg and Jessup JJ) 4. Ponzio v B and P Caelli Construction Irrelevant Pty Ltd Federal Court [2006] FCA 1221 (CFMEU penalty proceedings, 11 September 2006, North J) [2007] FCAFC 65 ; (2007) 158 FCR 543 ; (2007)162 IR 444 (ABCC appeal re CFMEU penalty proceedings, 14 May 2007, Marshall, Lander and Jessup JJ) 5. Cahill v CFMEU Federal Court Marshall J [2008] FCA 495 (penalty proceedings, 11 April 2008) Irrelevant 6. Cruse v CFMEU & Anor CFMEU $35,000 - 1 contravention of s38 BCII Act (2½ day strike) and breaches of 2 clauses of certified agreement Federal Magistrates' Court Burchardt FM [2007] FMCA 1873 (penalty proceedings, 14 November 2007) 7. Stuart-Mahoney v CFMEU, Parker and CFMEU $20,000 - 1 contravention of s38 BCII Act ( $35,000 - 1 contravention of s43 BCII Act – irrelevant ) both in relation to overtime bans over 6 days Corbett Federal Court Tracey J (2008) 177 IR 61; [2008] FCA 1426 (penalty proceedings, 19 September 2008) 8. Duffy v CFMEU CFMEU $5,500 - 1 contravention of s38 BCII Act Federal Court H Jl~ t. n U n ll 1 Marshall J [2008] FCA 1804 (liability proceedings, 28 November 2008) (No 2) [2009] FCA 299 (penalty proceedings, 31 March 2009) 9. Stuart v CFMEU Irrelevant Federal Court [2009] FCA 1119 (penalty proceedings, 2 October 2009, Gray J) [2010] FCAFC 65 (ABCC appeal proceedings, 8 June 2010, Moore, Besanko and Gordon JJ) 10. Cruse v CFMEU & Anor Federal Magistrates Court Turner FM (2009) 182 IR 60; (penalty proceedings, CFMEU $27,500 - 1 contravention of s38 BCII Act 9 April 2009) 11. Cruse v CFMEU & Anor Federal Court Marshall J [2009] FCA 787 (agreed penalty proceedings, 29 July 2009) CFMEU $10,000 - 1 contravention of s38 BCII Act 12. Cozadinos v CFMEU, Berardi and CFMEU $20,000 - 1 contravention of s38 BCII Act ($20,000 - 1 contravention of s43 BCII Act – irrelevant ) Mates Federal Court Marshall J [2010] FCA 48 (penalty proceedings, 5 February 2010) 13. Cozadinos v CFMEU & Anor Irrelevant Federal Magistrates Court Burchardt FM [2008] FMCA 1591 (liability proceedings, 10 December 2008) [2009] FMCA 272 (penalty proceedings, 7 May 2009) 14. Gregor v CFMEU and Berardi Federal Magistrates Court O'Sullivan FM CFMEU $7,500 - 1 contravention of s38 BCII Act [2009] FMCA 1266 (penalty proceedings, 16 December 2009) 15. Wotherspoon v CFMEU, Stephenson CFMEU $25,000 - 1 contravention of s38 BCII Act and Slater Federal Magistrates Court Turner FM [2010] FMCA 184 , (agreed penalty proceedings, 22 March 2010) 16. Cruse v CFMEU & Anor Federal Court Marshall J Repeats row 11. [2009] FCA 787 (agreed penalty proceedings, 29 July 2009) 17. Williams v Automotive, Food, Metals, Irrelevant Engineering, Printing and Kindred Industries Union Federal Court Jessup J [2010] FCA 754 (agreed liability and penalty proceedings, 1,10 and 17 March 2010 and 2 July 2010) 18. John Holland Pty Ltd v Benstead & CFMEU Federal Magistrates Court Turner FM [2009] FMCA 1065 (agreed penalty proceedings, 12 November 2009) 19. John Holland v CFMEU, Travers, O’Grady and Reardon O’Sullivan FM [2009] FMCA 1248 (penalty proceedings, 14 December 2009 CFMEU $23,000 - being $11,500 each for 2 contraventions of s38 BCII Act 20. Alfred v Wakelin Federal Court Jagot J (No 1) [2008] FCA 1455 (CFMEU penalty proceedings, 25 September 2008) CFMEU $8,000 - 1 contravention of s38 BCII Act COERCIVE CONDUCT CASES VICTORIA 21. Martino v CFMEU and Maher Irrelevant Melbourne Magistrates' Court Magistrate Hawkins No medium neutral citation (No. T02692326, 10 May 2006) 22. Cruse v CFMEU Irrelevant Federal Court Marshall J [2008] FCA 1267 (substantive proceedings, 22 August 2008) (No 2) [2008] FCA 1637 (penalty proceedings, 5 November 2008) 23. Draffin v CFMEU Federal Court Marshall J [2009] FCA 243 (CFMEU penalty proceedings, 17 March 2009) [2009] FCAFC 120 (ABCC appeal from CFMEU penalties, 10 September 2009) Irrelevant 24. Cahill v CFMEU Federal Court Kenny J (No 3) (2009) 178 IR 89; [2009] FCA 52 (substantive proceedings, 5 February 2009, Kenny J) (No 4) 189 IR 304; [2009] FCA 1040 (penalty proceedings, 16 September 2009, Kenny J) [2010] FCAFC 39 (CFMEU appeal proceedings, 18 May 2010, Moore, Middleton and Gordon JJ) Irrelevant 25. Williams v CFMEU Federal Court Jessup J [2009] FCA 223 (substantive proceedings, 13 March 2009) (No 2) (2009) 182 IR 327; [2009] FCA 548 (penalty proceedings, 28 May 2009) [2009] FCAFC 171 (CFMEU appeal on penalty proceedings, 7 December 2009) Irrelevant 26. Stuart-Mahoney v CFMEU and Anor Federal Magistrates Court Burchardt FM *NB Under appeal (Wo2j[2008]FMCA1015 (substantive proceedings, 4 August 2008) (No 3) [2008] FMCA1435 (penalty proceedings, 19 September 2008) Irrelevant 27. Wilson v Nesbit and CFMEU Federal Court Dowsett J Irrelevant [2009] FCA 1574 (penalty proceedings, 23 December 2009) 28. Alfred v CFMEU Irrelevant NSW District Court 30 March 2004 (no written reasons published) 29. Hadgkiss v Blevin Irrelevant Federal Court Conti J [2004] FCA 697 (substantive proceedings, 1 June 2004) [2004] FCA 917 (penalty proceedings, 13 July 2004) 30. Alfred v Walter Construction Group Irrelevant Limited Federal Court Branson J [2005] FCA 497 (penalty proceedings, 3 May 2005) 31. A & L Silvestri Pty Ltd v CFMEU Irrelevant Federal Court Gyles J [2007] FCA 1047 (substantive proceedings, 13 July 2007) [2008] FCA 466 (penalty proceedings, 11 April 2008) 32. Alfred v Lanscar Irrelevant Federal Court Buchanan J (2007)167 IR320 (penalty proceedings, 4 July 2007) 33. Alfred v CFMEU & Ors Federal Magistrates Court Smith FM Irrelevant * NB Under appeal [2009] FMCA 613 (substantive proceedings, 10 July 2009) (No 2) [2009] FMCA 1003 (penalty proceedings, 20 October 2009) QUEENSLAND 34. Hamberger, Employment Advocate v CFMEU Federal Court (2000)103 IR249 (substantive proceedings, 22 December 2000, Cooper J) [2002] FCA 585 (penalty proceedings, 9 May 2002, Cooper J) (2003) 127FCR309 (CFMEU penalty appeal proceedings, 10 March 2003, Spender, Drummond and Marshall JJ) Irrelevant INTERLOCUTORY 35. Australian Building and Construction Commissioner v CFMEU Federal Court Gilmour J 2 July 2009 (interim injunction proceedings) f20091FCA1092(29 September 2009) (interlocutory injunction