Federal Court of Australia Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (No 2) [2021] FCAFC 56 Appeal from: Registered Organisations Commissioner v Communications, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2020] FCA 96 File number: NSD 338 of 2020 Judgment of: BROMBERG, RANGIAH AND BROMWICH JJ Date of judgment: 20 April 2021 Catchwords: PRACTICE AND PROCEDURE – Federal Court Rules 2011 (Cth) r 39.05 – application to set aside and vary order imposing pecuniary penalties – where inconsistency in reasons for judgment did not result in error in the order – application dismissed. Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) ss 230(1) and 233(2) Federal Court of Australia Act 1976 (Cth) s 4 Federal Court Rules 2011 (Cth) r 39.05 Cases cited: Ah Toy v Registrar of Companies (1985) 10 FCR 280 Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 Ashby v Slipper (2014) 219 FCR 322 Australian Securities & Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183 Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner [2020] FCAFC 232 Harmer v Oracle Corporation Australia Pty Limited (2013) 299 ALR 236 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 Letten v Templeton [2014] FCAFC 131 Maughan Thiem Auto Sales Pty Ltd v Cooper (2013) 216 FCR 197 Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 13 Date of last submissions: 24 March 2021 (Respondent) 18 March 2021 (Appellant) Date of hearing: Determined on the papers Counsel for the Appellant: Mr J Agius SC with Mr C Tran Solicitor for the Appellant: Hall Payne Lawyers Counsel for the Respondent: Mr D Star QC with Ms N Blok Solicitor for the Respondent: Lander & Rogers Lawyers ORDERS NSD 338 of 2020 BETWEEN: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Appellant AND: REGISTERED ORGANISATIONS COMMISSIONER Respondent order made by: BROMBERG, RANGIAH AND BROMWICH JJ DATE OF ORDER: 20 APRIL 2021 THE COURT ORDERS THAT: 1. The respondent's application for the setting aside and variation of Order 2 of the orders made on 22 December 2020 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 On 22 December 2020, the Full Court delivered judgment in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner [2020] FCAFC 232. The appellant (the Union) had appealed against an order of a single judge that the Union pay a pecuniary penalty of $445,000 for contraventions of s 230(1) and 233(2) of the Fair Work (Registered Organisations) Act 2009 (Cth). 2 The first order of the Full Court allowed the appeal. The second order set aside the relevant order of the primary judge and substituted an order that the Union pay penalties totalling $200,000. 3 On 4 February 2021, the respondent (the Commissioner) wrote to the Full Court seeking orders setting aside and varying the second order pursuant to r 39.05(e) or (h) of the Federal Court Rules 2011 (Cth). The respondent submits that there is an inconsistency within the Full Court's reasons for judgment which led to an error in the second order. The Union accepts that the asserted inconsistency exists, but submits that the second order was not thereby affected and should not be set aside or varied. The parties agree that the issue should be determined on the papers. 4 In the appeal, the Full Court held that the relevant order of the primary judge was affected by appealable error. As a result, it became necessary to reassess the appropriate penalties. The issue raised by the respondent concerns the Full Court's treatment of certain of the Union's contraventions, described as contraventions 30 to 37, 44 to 46 and 64 to 65. 5 The primary judge had found that, apart from contraventions 33 to 36, these contraventions should be regarded as individual contraventions, and not as occurring within courses of conduct. In the appeal, the Union submitted that contraventions 30 to 37, 44 to 46 and 64 to 65 should have been treated as occurring within three courses of conduct. The Full Court rejected that submission, agreeing at [142] with the primary judge's view that contraventions 30, 31, 32, 37, 44, 45, 46, 64 and 65 should be regarded as individual contraventions. 6 The Full Court set out a table at [175] of the reasons summarising the contraventions and assessing the appropriate penalty for each contravention and course of conduct. In the table, a single penalty for contraventions 30 to 37, a single penalty for 44 to 46, and a single penalty for 64 and 65, was assessed. However, the conclusion at [142] meant that individual penalties for each of these contraventions, apart from 33 to 36, ought to have been assessed. The inconsistency was inadvertent. 7 A single penalty of $8,100 (15% of the maximum penalty) was assessed for contraventions 30 to 37 on the mistaken basis that they were to be treated as a single course of conduct. That assessment took into account the seriousness of the course of conduct, including that there were eight contraventions involved. Had contraventions 30, 31, 32 and 37 been treated as individual contraventions, a penalty of $1,620 (3% of the maximum) would have been assessed for each. In addition, a single penalty of $3,780 (7% of the maximum) would have been assessed for contraventions 33 to 36. The penalties assessed for contraventions 30 to 37 should have totalled $10,260 instead of $8,100. 8 A single penalty of $13,500 (25% of the maximum) was assessed for contraventions 44 to 46. If they had been treated individually, a penalty of $8,100 (15% of the maximum) would have been assessed for contravention 44, $3,780 (7% of the maximum) for contravention 45, and $2,700 (5% of the maximum) for contravention 46. The penalties for contraventions 44 to 46 should have totalled $14,580 instead of $13,500. 9 A single penalty of $8,100 (15% of the maximum) was assessed for contraventions 64 and 65. If they had been treated individually, a penalty of $4,860 (9% of the maximum) would have been assessed for contravention 64 and $3,780 (7% of the maximum) for contravention 65. The penalties for contraventions 64 and 65 should have totalled $8,640 instead of $8,100. 10 The total of all the penalties assessed should have been $222,630 instead of $218,850, a difference of $3,780. 11 The Full Court went on at [177] to apply the totality principle, and concluded that penalties totalling $200,000 should be imposed. The minor difference that would have been made by assessing individual penalties for contraventions 30, 31, 32, 37, 44, 45, 46, 64 and 65 would not have affected that conclusion. As was emphasised at [176], the evaluative task of assessing appropriate penalties does not involve mathematical precision. Accordingly, the inconsistency in the reasons did not result in any error in the second order made on 22 December 2020. 12 Rule 39.05 of the Federal Court Rules allows the Court to vary or set aside a judgment or order after it has been entered if, relevantly, the judgment or order does not reflect the intention of the Court, or there is an error arising in a judgment or order from an accidental slip or omission. A "judgment" is defined in s 4 of the Federal Court of Australia Act 1976 (Cth), relevantly, as a "judgment, decree or order". A "judgment" is a formal order by which the court disposes of the matter before it, and reasons for judgment are not themselves a "judgment": see, for example, the judgments of the Full Court in Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285–286; Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 at 399; Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 at 99; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 at 378; Australian Securities & Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183 at [35]; and Harmer v Oracle Corporation Australia Pty Limited (2013) 299 ALR 236 at [21]–[22] and [33]; Maughan Thiem Auto Sales Pty Ltd v Cooper (2013) 216 FCR 197 at [46]; Ashby v Slipper (2014) 219 FCR 322 at [49] and [309]; Letten v Templeton [2014] FCAFC 131 at [17]. As the inconsistency in the reasons did not lead to any error in the orders, there is no basis for setting aside or varying the orders. 13 The respondent's application for the setting aside and variation of the second order will be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromberg, Rangiah and Bromwich. Associate: Dated: 20 April 2021