FEDERAL COURT OF AUSTRALIA Hamberger v Construction Forestry Mining and Energy Union [2002] FCA 586 INDUSTRIAL LAW - Contravention of s 298S(2) of the Workplace Relations Act 1996 (Cth) - penalty - matters to be taken into account - amount of penalty - where need for deterrence. Workplace Relations Act 1996 (Cth) s 170NF(1), s 298S(2) Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Appl Employment Advocate v National Union of Workers (2000) 99 IR 376 Dist JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE v CONSTRUCTION, FORESTRY MINING AND ENERGY UNION, AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES, MICHAEL RAVBAR AND DAVID HANNA Q103 of 1999 COOPER J BRISBANE 9 MAY 2002 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q103 OF 1999 BETWEEN: JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE APPLICANT AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION FIRST RESPONDENT AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES SECOND RESPONDENT MICHAEL RAVBAR THIRD RESPONDENT DAVID HANNA FOURTH RESPONDENT JUDGE: COOPER J DATE OF ORDER: 9 MAY 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT pursuant to s 170NF(1) of the Workplace Relations Act 1996 (Cth) : 1. A penalty of $5,000 be imposed on the second respondent for contravention of s 298S(2) of the Act on 4 March 1999. 2. A penalty of $750 be imposed on the fourth respondent for contravention of s 298S(2) of the Act on 4 March 1999. 3. Each of the penalties so imposed be paid into the Consolidated Revenue Fund. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q103 OF 1999 BETWEEN: JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE APPLICANT AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION FIRST RESPONDENT AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES SECOND RESPONDENT MICHAEL RAVBAR THIRD RESPONDENT DAVID HANNA FOURTH RESPONDENT JUDGE: COOPER J DATE: 9 MAY 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 These proceedings were initiated by the Employment Advocate under the provisions of the Workplace Relations Act 1996 (Cth) ("the Act") in respect of alleged contraventions of Part XA of the Act. 2 On 22 December 2000, I ordered that the proceedings be dismissed against the first and third respondents and that they be adjourned to a date to be fixed to hear submissions as to penalty, if any, to be imposed against the second and the fourth respondents for contravention of s 298S(2) of the Act. Leave to appeal was granted by a Full Court of this court on 18 October 2001, but the appeals were dismissed: [2001] FCA 1443. 3 On 7 February 2002 submissions on penalty were heard in conjunction with submissions on penalty in Q43 of 1999. 4 Section 298S(2) of the Act provides : "298S(2) An industrial association, or an officer or member of an industrial association, must not: (a) advise, encourage or incite a person (whether an employer or not) to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association; or (b) take, or threaten to take, industrial action against an employer with intent to coerce the employer to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association; or (c) take, or threaten to take, industrial action against an eligible person with intent to coerce the person to join an industrial association." 5 The circumstances giving rise to the two matters of complaint were : (a) Hedley Plumbing Pty Ltd ("Hedley"), in the course of its business as a provider of plumbing and carpentry services, had contracted with Leighton Constructions Pty Ltd ("Leighton") to perform roofing facade cladding and plumbing works at the Museum of Tropical Queensland site. (b) David John Poppi ("Poppi") carried on business as a carpenter, and at all material times he was contracted to Hedley to provide his own carpentry services and to supervise and manage the provision and performance of the roofing and facade operations as the representative of Hedley on site. (c) Ronald Shane Thinee ("Thinee") carried on business as a carpenter, and at all material times contracted with Hedley to provide carpentry services for the performance of the roof cladding and facade work at the site. (d) Ronald Michael Thomas ("Thomas") carried on business as a carpenter and at all material times contracted with Hedley to provide carpentry services for the performance of the roof cladding and facade work at the site. (e) David Hanna ("Hanna") is, and at all material times was, a member, employee and officer of the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees ("the BLF"). He is and was also a member and officer of the CFMEU. (f) The BLF is an industrial organisation of employees registered under the Industrial Organisations Act 1997 (Qld) ("the State Act"). 6 The full circumstances of the complaints alleged by the applicant against the respondents and my detailed findings are contained in my reasons for judgment at [2000] FCA 1924. I do not propose to repeat them. 7 As to the conduct which occurred on 4 March 1999 and in respect of which I was satisfied that the second and fourth respondents had contravened s 298S(2), I found : "[74] ... I am satisfied on the balance of probabilities that on 4 March 1999: (a) Poppi, Thinee and Thomas were "eligible persons" within the meaning of s 298S(1) of the Act; (b) Hanna threatened to take industrial action against Poppi, Thinee and Thomas as eligible persons with intent to coerce them to join an industrial association, in this case the CFMEU; (c) Hanna was at the time of taking such action, acting in his capacity as an official of the BLF and that in consequence of the operation of s 298B(2) of the Act, his conduct was the conduct of the BLF; (d) Hanna and the BLF, on 4 March 1999, contravened s 298S(2)(c) of the Act, in that they threatened to take industrial action against Poppi, Thinee and Thomas by withdrawing the labour of other workers on site and thereby denying Poppi, Thinee and Thomas the opportunity to perform their contracted work with intent to coerce them to join an industrial association." 8 The threat made by the fourth respondent was contained in the following exchange which occurred on 4 March 1999 : "Hanna: 'Are you and your blokes going to join the union?' Poppi: 'No, I didn't think it was compulsory to join the union. I'm the foreman on site, I didn't think I had to join the union' Hanna: 'If you and your blokes don't join the union by Monday, we will have a meeting and the other workers on site will vote to close down the site and you won't be allowed to work.' Poppi: 'I didn't think it was compulsory to join the union.' Hanna: 'If you and your blokes don't join the union by Monday, we'll have a show of hands to close down the site. You won't be allowed on site.' Poppi: 'Are you saying we can't work?' Hanna: 'No, you just won't be allowed to work on this site.'" 9 I have set out in my reasons for judgment on penalty in Q43 of 1999 at paragraph 15, some of the relevant factors to be taken into account in imposing a penalty under the Act. I do not propose to repeat them, although they will form the basis of my consideration of the issue in this matter. 10 The applicant submits that the conduct in question was deliberate and persisted in, despite the fact of Poppi raising his understanding that he was free to join or not join a union as he chose. The threat was to close down the site and thereby deprive Poppi, Thinee and Thomas of the opportunity to earn income. It was therefore, the applicant submits, a serious threat involving significant serious consequences if carried into effect. 11 The second and fourth respondents, by their counsel, submit that : (a) there is no evidence that the fourth respondent acted in deliberate defiance or disregard to the Act and that the second respondent is only in breach because of the deeming provisions of s 298B(2) of the Act; (b) the fourth respondent has not been found to have engaged on other occasions in conduct in contravention of Part XA of the Act; (c) the second respondent was found in proceedings Q43 of 1999 to have engaged in conduct in contravention of Part XA, that conduct being a deemed contravention because of the conduct of another organiser; (d) the breach found against the second and fourth respondents is a single breach only and nothing in the subsequent conduct of the fourth respondent was found to constitute a contravention of Part XA of the Act; (e) there were no adverse consequences as a result of the contravention, as the threat was not carried into effect; (f) the right of the subcontractors to freedom of association was not, in fact, infringed; (g) there is no material to suggest that there has been a repetition of the conduct and that there is any need for a penalty to be applied as a deterrence to prevent future breaches; (h) there should be no penalty imposed on the second respondent as it is only in breach because of the deeming provision in s 298B(2) of the Act and only a penalty in the low range is warranted against the fourth respondent. 12 Each of these submissions addresses the list of material circumstances to be taken into account when imposing a penalty which appear in Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at 322, [8]. 13 In the present case the second respondent, as it did in Q43 of 1999, has chosen to put no material before the Court as to its knowledge of the conduct of the fourth respondent prior to the conduct constituting the contravention, nor whether it has counselled him and other organisers to modify their conduct so as not to contravene the provisions of Part XA where persons wish to exercise their right not to join a union if they so choose. For the reasons which I gave in Q43 of 1999 as to the consequences on the question of penalty in adopting such a course, the second respondent does not have the benefit of material which may ameliorate its position in relation to the conduct of an officer, servant or agent for which it is liable. The position of the second respondent is totally distinguishable from the National Union of Workers in Employment Advocate v National Union of Workers (2000) 99 IR 376. In that case the Union put on evidence that those in authority did not know of, or authorise, the offending conduct. 14 There is nothing in the conduct of these proceedings to suggest that the second respondent regarded the conduct of the fourth respondent as wrong and unacceptable. Rather, it has sought to contend that there was nothing for which the fourth respondent was liable under the Act. There is no suggestion of contrition in the stance taken by the second respondent, even by the time when submissions on penalty were heard. 15 The conduct of the fourth respondent was serious and is not to be dismissed as an isolated act which happened to breach a provision of Part XA of the Act. The conduct of the fourth respondent was confrontational and intended to intimidate and coerce Messrs Poppi, Thinee and Thomas into joining a union. It was not an attempt to enrol new members by reason and persuasion. The conduct was persisted in, notwithstanding that Poppi indicated their belief, correctly in the circumstances, that it was not compulsory for them to be in a union. There is no suggestion of any contrition on the part of the fourth respondent. 16 It is not a complete answer to say that the threat was not carried into effect and that there were not serious consequences to the subcontractors. That is merely to say that additional circumstances of aggravation warranting a higher penalty are absent. The subcontractors were subjected to conduct which the Act provides they are to be free from. The interference with their right to be free to choose whether or not to join a union is a serious consequence in itself. 17 It is a matter of some concern that two different organisers of the second respondent at about the same time at construction sites in Queensland have engaged in conduct in breach of Part XA of the Act by engaging in confrontational, threatening conduct. This type of conduct appears, at a minimum, to be tolerated or condoned and indicates in my view a need to impose a penalty on both the second and fourth respondents to deter them and others who might be minded to act in a similar fashion from so acting. 18 There will be imposed on the second respondent a penalty in the sum of $5,000 and on the fourth respondent a penalty of $750. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate: Dated: 9 May 2002 Counsel for the Applicant: Mr A Horneman-Wren Solicitor for the Applicant: Australian Government Solicitor Counsel for the First, Second, Third and Fourth Respondents: Mr S Crawshaw SC Solicitor for the First, Second, Third and Fourth Respondents: Quinlan Miller & Treston Date of Hearing: 7 February 2002 Date of Judgment: 9 May 2002