FEDERAL COURT OF AUSTRALIA Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 616 File number(s): WAD 289 of 2014 Judge(s): SIOPIS J Date of judgment: 30 May 2016 Catchwords: INDUSTRIAL LAW – contraventions of s 348 of the Fair Work Act 2009 (Cth) – where the union learned that employees of a subcontractor on a construction site at Perth international airport had not been paid outstanding wages by their employer – where the union's organisers and officials organised and participated in a blockade of the work site to coerce the payment of the outstanding wages – appropriate penalty – factors relevant to determining appropriate penalty – prior relevant conduct – extent of contraventions – whether contraventions should be treated as a single course of conduct – application of proportionality principle. Legislation: Fair Work Act 2009 (Cth) ss 348, 363, 546, 546(1), 546(2), 546(3)(a), 793 Crimes Act 1914 (Cth) s 4AA(1) Cases cited: Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 Commonwealth of Australia v DFWBII; CFMEU v DFWBII (2015) 90 ALJR 113 Veen v The Queen [No 2] (1988) 164 CLR 465 Date of hearing: 30 July 2015 Date of last submissions: 26 February 2016 Registry: Western Australia Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 83 Counsel for the Applicant: Ms G Archer SC Solicitor for the Applicant: K&L Gates Counsel for the First, Third, Fourth, Fifth, Sixth, Seventh and Eighth Respondents: Mr J Nicholas Solicitor for the First, Third, Fourth, Fifth, Sixth, Seventh and Eighth Respondents: Nicholas Legal ORDERS WAD 289 of 2014 BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE Applicant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS Second Respondent MICHAEL BUCHAN (and others named in the Schedule) Third Respondent JUDGE: SIOPIS J DATE OF ORDER: 30 May 2016 THE COURT DECLARES THAT: 1. Each of the third, fourth, fifth and sixth respondents contravened s 348 of the Fair Work Act 2009 (Cth) by organising and, on 22 October 2013, participating in a blockade, with about 100 other persons (the protesters), of the entrances to the Terminal 1 project work site (the project site) at Perth international airport so as to prevent workers having access to the project work site, with the intent to coerce one or more of Perth Airport Pty Ltd (Perth Airport), Broad Construction Services (WA) Pty Ltd (Broad) and Concealed Interiors and Exteriors Pty Ltd (Concealed Interiors) to comply with the lawful request of the first respondent to pay the outstanding wages and contractual entitlements then due to some employees of Concealed Interiors. 2. The fourth respondent contravened s 348 of the Fair Work Act by, on 22 October 2013, by threatening to return to the project work site with the protesters on the following day and to effect a blockade of the entrances to the project work site so as to prevent workers having access to the project work site, with the intent to coerce one or more of Perth Airport, Broad and Concealed Interiors to comply with the lawful request of the first respondent to pay the outstanding wages and contractual entitlements then due to some employees of Concealed Interiors. 3. The conduct of each of the third, fourth, fifth and sixth respondents comprising the contraventions referred to in declaration 1 and declaration 2 above, was carried out within the scope of his actual or apparent authority for and on behalf of the first respondent, and by reason of s 793 of the Fair Work Act, the first respondent has, also, in respect of each such contravention, contravened s 348 of the Fair Work Act. 4. Each of the seventh and eighth respondents contravened s 348 of the Fair Work Act by participating in, and encouraging the conduct of, the blockade and, thereby, being involved in the contravening conduct of the first respondent. THE COURT ORDERS THAT: 1. The following pecuniary penalties are imposed in respect of the contraventions referred to above: (a) A total penalty of $12,000, comprising five single penalties of $2,400, on the first respondent. (b) A penalty of $2,250 on each of the third respondent and fifth respondent. (c) A penalty of $2,750 on the fourth respondent, comprising two separate penalties of $1,750 and $1,000. (d) A penalty of $2,000 on the sixth respondent. (e) A penalty of $1,000 on the seventh respondent. (f) A penalty of $1,250 on the eighth respondent. 2. Pursuant to s 546(3)(a) of the Fair Work Act, the penalties referred to in order 1 be paid to the applicant. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SIOPIS J: 1 In October 2013, there was a large construction project being undertaken at the Perth international airport for the upgrading of Terminal 1. Perth Airport Pty Ltd (Perth Airport) was the owner of the land and premises being upgraded and it, as principal of the construction project, engaged Broad Construction Services (WA) Pty Ltd (Broad) as the head contractor. Broad, in turn, engaged 22 subcontractors. One of the subcontractors was a company, Concealed Interiors and Exteriors Pty Ltd (Concealed Interiors). 2 In October 2013, the officials of the first respondent, the Construction, Forestry, Mining and Energy Union (CFMEU), received complaints that a number of employees of Concealed Interiors who were working on the project, had not been paid their wages for six to eight weeks. 3 Four officials and organisers of the CFMEU organised for about 100 protesters to attend the Terminal 1 project work site early on the morning of 22 October 2013. The protesters and the CFMEU officials and organisers attended the project work site and blockaded the entrances to that site for about three and a half hours. During that time, some of the CFMEU officials and unpaid workers employed by Concealed Interiors attended on representatives of Perth Airport Pty Ltd so that the unpaid workers could explain their plight to those representatives. The consequence of the blockade was that for about three and a half hours about 160 site workers were denied access to the project work site and, therefore, no work was carried out during that period on the site. 4 On 15 September 2014, the applicant, the Director of the Fair Work Building Industry Inspectorate, commenced proceedings against the CFMEU and a number of officials and organisers of the CFMEU, in respect of their conduct in organising and participating in the blockade of the project work site. In short, the applicant contended that the respondents had engaged in coercive conduct in contravention of s 348 of the Fair Work Act 2009 (Cth). 5 The respondents to the proceeding, other than the CFMEU, are the third respondent, Mr Michael Buchan; the fourth respondent, Mr Joseph McDonald; the fifth respondent, Mr Walter Molina, also known as Mr Vinnie Molina; the sixth respondent, Mr Peter Joshua; the seventh respondent, Mr Campbell McCullough and the eighth respondent, Mr Tawa Harris. The applicant discontinued its claim against the second respondent. 6 The parties agreed a set of facts and admissions. The hearing before the Court was confined to the question of the appropriate penalty to be imposed on each of the respondents. the originating application 7 By the time the matter came to hearing, the applicant claimed, in summary, the following relief: (a) declarations that each of the third, fourth (on two occasions), fifth and sixth respondents contravened s 348 of the Fair Work Act; (b) declarations that the conduct of the third to sixth respondents is taken to be the conduct of the first respondent pursuant to s 363 and/or s 793 of the Fair Work Act and, accordingly, the first respondent contravened s 348 of the Fair Work Act; (c) declarations that each of the seventh and eighth respondents was involved in the contraventions of s 348 of the Fair Work Act by the first respondent and, accordingly, each contravened s 348 of the Fair Work Act; (d) orders, pursuant to s 546(1) of the Fair Work Act, imposing pecuniary penalties; (e) an order, pursuant to s 546(3)(a) of the Fair Work Act, that the pecuniary penalties be paid to the applicant. legislative provisions 8 The relevant provisions of the Fair Work Act are set out below: 348 Coercion A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity. 363 Actions of industrial associations (1) For the purposes of this Part, each of the following is taken to be action of an industrial association: (a) action taken by the committee of management of the industrial association; (b) action taken by an officer or agent of the industrial association acting in that capacity; (c) action taken by a member, or group of members, of the industrial association if the action is authorised by: (i) the rules of the industrial association; or (ii) the committee of management of the industrial association; or (iii) an officer or agent of the industrial association acting in that capacity; (d) action taken by a member of the industrial association who performs the function of dealing with an employer on behalf of the member and other members of the industrial association, acting in that capacity; (e) if the industrial association is an unincorporated industrial association that does not have a committee of management - action taken by a member, or group of members, of the industrial association. … 546 Pecuniary penalty orders (1) The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision. … Determining amount of pecuniary penalty (2) The pecuniary penalty must not be more than: (a) if the person is an individual - the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or (b) if the person is a body corporate - 5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2). Payment of penalty (3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to: (a) the Commonwealth; or (b) a particular organisation; or (c) a particular person. … 793 Liability of bodies corporate Conduct of a body corporate (1) Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official; is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body. State of mind of a body corporate (2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show: (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and (b) that the person had that state of mind. Meaning of state of mind (3) The state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person's reasons for the intention, opinion, belief or purpose. … 9 The maximum penalty referred to in s 546(2) for a contravention of s 348 of the Fair Work Act by an individual is 60 penalty units and 300 penalty units for a contravention by a body corporate. The value of a penalty unit as defined by s 4AA(1) of the Crimes Act 1914 (Cth) was, at 22 October 2013, $170. Consequently, a contravention of s 348 by an individual carries a maximum penalty of $10,200, and a contravention by the CFMEU, being a body corporate, carries a maximum penalty of $51,000. agreed facts and admissions 10 On 23 April 2015, the parties filed a statement of agreed facts and admissions which had been signed by the legal representatives of each of the parties. Based on that statement, I make the findings set out below. 11 The CFMEU was, at all material times, an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and, as a result of that registration, was a body corporate capable of being sued. The CFMEU is an association of employees with eligibility rules that allow membership of persons whose employment consists of, or includes, building work. 12 Mr Buchan, is, and was, at all material times, the Secretary of the Western Australian CFMEU Construction and General Division and an official of the CFMEU. 13 Mr McDonald, is, and was, at all material times, the Assistant Secretary of the Western Australian CFMEU Construction and General Division and an official of the CFMEU. 14 Mr Molina, Mr Joshua and Mr Harris were, at all material times, organisers from the CFMEU. 15 Mr McCullough was, at all material times, the President of the Western Australian branch of the CFMEU Construction and General Division and an official of the CFMEU. 16 In engaging in the conduct impugned in this proceeding, each of Mr Buchan, Mr McDonald, Mr Molina, Mr Joshua, Mr Harris and Mr McCullough acted within the scope of his actual or apparent authority, for and on behalf, of the CFMEU. 17 At all material times, Broad was the head contractor responsible to Perth Airport for the construction of the building works comprising the Terminal 1 project. Broad had engaged a number of companies as subcontractors to complete the required works for this project. 18 Concealed Interiors was, at all material times, a subcontractor of Broad for the Terminal 1 project, and it engaged employees for the purpose of working on the project works. Another subcontractor was Solwest Construction Pty Ltd (Solwest Construction), which also engaged employees to carry out work on the project. 19 Perth Airport was, at all material times, the owner of the project site and was the principal on the Terminal 1 project. Perth Airport engaged Broad to be head contractor on the project. 20 As at 22 October 2013, the CFMEU had a reasonable belief that Concealed Interiors may have failed to pay some of its employees for some of the work performed at the project site. 21 On 22 October 2013, approximately 160 workers (the site workers) employed by 22 subcontractors were required to attend for duty at the project site and to perform work on the project. At about 6:30 am, as the site workers arrived for work, Mr Buchan, Mr McDonald, Mr Molina, Mr Joshua and approximately 100 other persons, referred to by the parties as "the protesters", attended the project site. 22 Between 6:30 am and 10:00 am, Mr Buchan, Mr McDonald, Mr Molina and Mr Joshua established and maintained a blockade of the project site. At some time between 6:30 am and 10:00 am, Mr McCullough and Mr Harris also attended the project site and participated in the blockade. The blockade involved occupying the entrances to the project site, organising the protestors to occupy the entrances to the project site, preventing or dissuading those employees of the various subcontractors who wished to work on the Terminal 1 project that day from entering the project site, and otherwise persuading the employees of the various subcontractors to engage in industrial action and not perform work on the Terminal 1 project. 23 At various times during the period from approximately 6:30 am to approximately 10:00 am, Mr Buchan, Mr McDonald, Mr Molina, Mr Joshua, Mr McCullough and Mr Harris and the protesters held CFMEU banners and stood in front of the entrance gates to the project site, thereby blocking access to the project site. Also, they placed CFMEU signs and flags on the fence surrounding the project site, on red and white plastic water barriers by the entrance gate, and on the back of utility vehicles parked adjacent to the entrance gate to the project site. 24 At approximately 8:57 am, Mr Buchan stood in front of the project site with a crowd of people standing behind him, including Mr McDonald, Mr Molina, Mr Joshua, Mr McCullough and Mr Harris. Mr Buchan engaged in an interview with a reporter from Channel 10, and the following exchanges took place: Reporter: "Mick do you want to just tell us why the workers walked off the job this morning." [Mr] Buchan: "What's happened for, it's been very frustrating for the workers on this particular project over the last couple of months, they're being paid in dribs and drabs as it goes through. We've got some workers here that are owed in excess of 6 to 8 weeks pay outstanding not to mention their statutory entitlements of superannuation and long service leave that there hasn't been 1 cent paid since they started on the project and I suppose with everything it comes to a point where enough is enough their employer is not listening to them, the principal contractor is not listening to them, they give us a bell, our area organisers and we turned up this morning." … Reporter: "Who is it that has to pay who is not paying them, is it the ceilings company?" [Mr] Buchan: "Well I suppose that's something that we'll get to the bottom of at the end of the day, I think that everyone ducks for cover whether it's the principal contractor or the subcontractor at the end of the day what we care most about that is that we don't care where it comes from whether it's from the client whether the principal whether the subcontractor the worker's given up his work and put his blood to the stone and built the project and needs to be paid properly." Reporter: "So these guys here are they subcontractors or…" [Mr] Buchan: "The guys involved here are employees of the ceiling and wall contractor on the project." Reporter: "Which is Broad…What's the name of the company?" [Mr] Buchan: "The wall and ceiling company of this particular project…" Reporter: "That's what." [Mr] Buchan: "The principle contractor is Broad." Reporter: "Wall and Ceiling company. Is that what it's called?" [Mr] Buchan: "Concealed Interiors." 25 Following the above exchanges, Mr Buchan addressed the crowd from the back of a truck, and he and Mr McDonald were recorded on Channel 10 video footage as saying: [Mr] Buchan: "We have gone directly to Perth Airports today because of the blue, given the arrogance and often ignorance that Broad has shown for the Concealed fellas and Concealed's management as well, they're just not interested all they want to see is their job done…They will see and ensure that no-one is out of pocket…put all the starting dates all the hours and everything that's owed. For those that don't know these guys are being deducted 15% a week out of their pay to pay for workers compensation, superannuation and long service leave and yet on top of that no payments…and it's just another factor that we've got to get through moving forward that in the future that we see more reparable ceiling fixers get on these jobs that's it it's bullshit, so thanks again for that. Watch this space." … [Mr] McDonald: "Fair play to Vinnie he just kept and wouldn't give up." [Mr] Buchan: "Fair play to Vinnie with his area here with the Concealed guys, getting here before they start…by their employer time and time again that it gets to the point where you've got to make a stand and you need to know that when you do make a stand you've got support from all jobs around the fucking area to help you out, alright." 26 At some time between 9:00 am and 9:15 am, Mr Jan Eldred, an employee of Broad, tried to escort a worker, referred to, in the agreed facts, only as "Dave", of Solwest Construction, through the rear entrance of the Perth international airport terminal in order to avoid the blockade. Mr Eldred and Dave were followed and stopped by Mr Molina and another unidentified person who was wearing a shirt bearing the CFMEU logo. Dave said that he just wanted to access the site to "measure up". Mr Molina and the person wearing the CFMEU shirt said he would have to wait and come back later or go and work on another site. 27 At about 9:15 am, Mr Joshua approached Mr David Lewis, a site supervisor employed by Broad, and said words to the following effect: You guys need to sort out your CA's as Concealed are a shower of shit. They need to make it happen and pull the pin on them. We are doing exactly the same thing as we did with them six months ago. 28 At approximately 9:30 am, Mr Molina said to Mr Patrick Shoesmith of Broad: "Help us out by sending the guys to a different site for the day" to which Mr Shoesmith replied: "No, I couldn't do that." 29 By reason of the conduct referred to above, all but 10 to 15 of the 160 site workers were prevented or dissuaded from entering the project site between 6:30 am and 10:00 am on 22 October 2013. 30 Mr Buchan, Mr McDonald, Mr Molina and Mr Joshua agreed, and I find, that by reason of the matters referred to above, each organised and took action against Concealed Interiors, Broad and Perth Airport with intent to coerce the other to comply with a "lawful request made by the CFMEU" concerning the alleged unpaid entitlements of the employees of Concealed Interiors. This request was referred to by the parties as the "Concealed demand". I will adopt that nomenclature. 31 Each of Mr Buchan, Mr McDonald, Mr Molina, and Mr Joshua agreed, and I find, that, in the premises, each contravened s 348 of the Fair Work Act by organising and participating in the blockade to coerce Concealed Interiors, Broad and Perth Airport to comply with the Concealed demand. 32 Mr McDonald also agreed and, I find, that at about 10:00 am on 22 October 2013, Mr McDonald said words to an unidentified person to the effect that the respondents would return to the project site with protesters the following morning. Mr McDonald, also agreed, and I find, that he thereby threatened to take action against Concealed Interiors, Broad and Perth Airport, with the intent to coerce them to comply with the Concealed demand. 33 The parties also agreed, and I find, that the conduct of each of Mr Buchan, Mr McDonald (two contraventions), Mr Molina and Mr Joshua is taken to be the conduct of the CFMEU; and that, consequently, the CFMEU has committed five contraventions of s 348 of the Fair Work Act. 34 The parties agreed, and I find, that Mr McCullough and Mr Harris were present at, and took part in, the blockade and, by their presence, encouraged the conduct of the CFMEU and took no steps to dissociate themselves from that conduct. Mr McCullough and Mr Harris also agreed, and I find, that, by reason of that conduct, each aided the CFMEU's contravening conduct, was, thereby, involved in the CFMEU's conduct and, therefore, contravened s 348 of the Fair Work Act. what are the appropriate penalties to impose? 35 There are a number of well recognised factors which may be taken into account in assessing penalties for the contravention of the Fair Work Act. However, these factors are not to be applied rigidly as a checklist. The proper approach is to assess a penalty which pays appropriate regard to the circumstances in which the contravening conduct occurred and the need to sustain public confidence in the statutory regime in question (Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [91]). 36 I set out below a number of relevant factors that are referred to in the cases: (a) the circumstances, nature and extent of the conduct which led to the contraventions; (b) the nature and extent of any loss or damage sustained as a result of the contraventions; (c) the previous contraventions of industrial legislation; (d) whether the contraventions were properly distinct or arose out of one course of conduct; (e) the size of the business enterprise involved; (f) whether or not the contraventions were deliberate; (g) whether the senior management was involved in the contraventions; (h) whether the party committing the contraventions had exhibited contrition; (i) whether the party committing the contraventions had taken corrective action; (j) whether the party committing the contraventions had cooperated with the enforcement authorities; and (k) the need for specific and general deterrence. Circumstances, nature and extent of the conduct 37 The contravening conduct, other than Mr McDonald's threat, comprised organising and participating in a blockade of the entrances to a work site for the purpose of preventing workers from accessing the work site, with the intent to coerce the payment of the workers' outstanding contractual entitlements. The blockade lasted three and a half hours and commenced at approximately 6:30 am. 38 There is a difference in the extent of the contravening conduct between the third to eighth respondents. Mr Buchan, Mr McDonald, Mr Molina and Mr Joshua were engaged in organising the blockade, whereas Mr McCullough and Mr Harris were not. All of them participated in the blockade. In addition, Mr Buchan stood in front of the blockade and gave an interview to a reporter from Channel 10. He also addressed the assembled protesters from the back of a truck. Mr Molina played the primary role in taking up the complaints of the unpaid workers. Mr McDonald expressed vocal support for Mr Molina's work. 39 Mr McDonald's conduct giving rise to the second contravention comprised him being overheard making a threat to come back to repeat the blockade on the next day. 40 The reason for the blockade was that the CFMEU had received reports that a number of employees of Concealed Interiors working on the project had been unpaid for six to eight weeks. It is an agreed fact that the CFMEU had reasonable belief that this may be the case. 41 In assessing the nature and extent of the conduct of the respondents, it is material to have regard to the fact that by 22 October 2013, the CFMEU had a reasonable belief that Concealed Interiors may have failed to pay some of its employees for some of the work performed at the project site. In this regard, I take this agreed fact to mean that Mr Buchan's belief as to the circumstances of Concealed Interiors' failure to pay some of its employees, as expressed by Mr Buchan in his statements to the Channel 10 reporter (referred to at [24] above), was reasonably entertained by Mr Buchan. 42 In the case of Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232, Barker J observed that the purpose of the impugned conduct may be a relevant factor in considering the seriousness of the impugned conduct. At [25], Barker J observed: Although, as was agreed by the respondents, the industrial action was unlawful, I accept that it arose out of concerns for the treatment of the BPA employees. As such, the conduct of the respondents is to be contrasted with conduct carried out for arbitrary or base motives. 43 That the purpose of the contravening conduct was directed at seeking to assist workers who the CFMEU reasonably believed, had for some time not been paid their wages, is an important mitigating factor in assessing the seriousness of the admitted contraventions. 44 In assessing the level of seriousness of the admitted contraventions, I also place weight on the fact that the disruption to work at the work site was of limited duration, lasting for only about three and half hours. 45 Accordingly, I find that the contravening conduct of the respondents is to be characterised at the lower end of the scale of seriousness. Nature and extent of loss or damage 46 The respondents' conduct prevented all but 10 to 15 of the 160 site workers from attending work for approximately three and a half hours. The agreed facts do not identify any quantifiable economic loss or damage suffered by any party. Prior relevant conduct 47 A history of prior contraventions of industrial laws has the following consequences in assessing penalty. First, the conduct of the respondents with one or more prior contraventions is not mitigated by a clean record. Secondly, history of prior contraventions is relevant to the element of deterrence in setting the appropriate penalties. 48 The history of non-compliance with the industrial laws by the individual respondents is as follows: (a) Mr Buchan has been found liable for six contraventions of industrial laws. (b) Mr McDonald has been found liable for 53 contraventions of industrial laws. (c) Mr Molina has been found liable for nine contraventions of industrial laws. (d) Mr Harris has been found liable for three contraventions of industrial laws. 49 Each of Mr Joshua and Mr McCullough has no prior history of industrial law contraventions. 50 The CFMEU has a very extensive record of non-compliance with the provisions of industrial laws. Single course of conduct 51 The respondents contended that the five contraventions by Mr Buchan, Mr McDonald, Mr Molina and Mr Joshua, which are attributed to the CFMEU, should be treated as a single course of conduct. The applicant disagreed but said that, in any event, the characterisation of the CFMEU's conduct as a single course of conduct was of little practical significance because the application of the totality principle would remedy any anomaly arising from penalising the CFMEU on the basis that it had committed five separate contraventions of s 348 of the Fair Work Act. 52 The five CFMEU contraventions referred to comprise the contraventions to be attributed to the CFMEU in relation to the organisation of the blockade, and the participation therein by each of Mr Buchan, Mr McDonald, Mr Molina and Mr Joshua, as well as the additional contravention by Mr McDonald in threatening to return with protesters the next day. 53 The question of a single course of conduct has been considered by the Full Court of this Court in the cases of Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 (Cahill) and Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 (Williams). 54 In Cahill at [39]-[41], Middleton and Gordon JJ observed as follows: [39] As the passages in Williams explain, a "course of conduct" or the "one transaction principle" is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is "the same criminality" and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions. [40] Williams did not suggest otherwise. In Williams, the issue was not whether the trial judge had in fact considered whether the offences were to be characterised as arising from a single course of conduct, but whether the trial judge erred in his approach to that question. The trial judge concluded that the conduct should not be viewed as a single course of conduct because although Mr Mates (who was also a party in that case) "in a sense" had engaged in a single course of conduct, his Honour found that the conduct had two elements which s 43 of the Act recognised as separate and which were qualitatively distinct in the impact his Honour presumed they had on the third party. The appellants submitted in Williams, and the Full Court accepted, that the trial judge erred in his approach to the question of the single course of conduct. In particular, the Full Court concluded that the trial judge should not have treated the fact that the conduct had two elements which s 43 of the Act recognised as separate as a disentitling factor in deciding if the two offences were properly to be characterised as arising from the one transaction or a single course of conduct. [41] As noted above (see [41] [sic]), the principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, the court must ensure that the offender is not punished twice for the same conduct. In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion: Johnson v R (2004) 205 ALR 346; [2004] HCA 15 at [3]–[4] and [34] and Attorney-General v Tichy (1982) 30 SASR 84 at 92–3 (Tichy). It is a tool of analysis (Tichy at 93) which a court is not compelled to utilise: Royer v Western Australia [2009] WASCA 139 at [21]–[34] and [153]–[156] (Royer). (Original emphasis.) 55 The question then is whether there is an interrelationship between the legal and factual elements of two or more of the contraventions, which have been attributed to the CFMEU. Further, it is necessary to have regard to whether the offender would, but for the application of this "principle", be punished twice for "what is essentially the same criminality". It is necessary, therefore, to characterise the "criminality" in this case. In this case, the "criminality" was the coercion which arose from a single event, namely, the interference for about three and a half hours in the carrying on of work at the project site. The number of contraventions for which the CFMEU is liable arises from the conduct of four different persons organising and participating in that single act of interference. The interference was, in fact, effected by about 100 people (including the respondents) acting collectively, but the number of persons in the blockade is incidental because a similar interference could have been effected by a smaller or larger number of persons. Further, although the organisation of the blockade and the mobilisation of the protesters was effected by four CFMEU persons, this is also incidental because the blockade could have been organised by one or more persons without in any way affecting the nature of the offending conduct. In other words, the nature of the offending conduct, namely, the three and a half hour interference, did not vary in character by reason that it was organised by one, or more than one, person or by reason of the number of persons participating in the blockade. 56 In my view, therefore, there is an interrelationship, namely, an overlap, between the factual and legal elements of the offences which are attributable to the CFMEU and, accordingly, I will treat the four contraventions as a single course of conduct in assessing the appropriate penalty to be imposed on the CFMEU. 57 Further, in my view, the comments made by Mr McDonald in threatening to return the next day, were also part of the single course of conduct referred to above. This is because implicit in the interference by the blockade was the threat that it would be repeated if the Concealed demand for the payment of the outstanding wages was not met. Applying the observations of the Full Court in Williams at [25], Mr McDonald's threatening words were part of a continuum of the acts intended to coerce Perth Airport, Broad and Concealed Interiors to make the necessary arrangements amongst themselves to ensure that the workers were paid their outstanding wages. 58 Therefore, in assessing the penalty to be imposed on the CFMEU, this contravention will, with the other four contraventions already referred to, be treated as a single course of conduct. Likewise, the two contraventions by Mr McDonald will also be treated as a single course of conduct. Whether or not the contraventions were deliberate 59 The conduct of each of the individual respondents was deliberate. Size of the CFMEU and involvement of senior management 60 The CFMEU is a large, prominent and influential national union that would not have difficulty paying any penalty imposed upon it for the relevant contraventions. Mr Buchan and Mr McDonald each held senior positions within the CFMEU in Western Australia at the time of the contravening conduct. Contrition, corrective action and cooperation with enforcement authorities 61 There is no evidence that the respondents have demonstrated any contrition or made any attempt at corrective conduct. I find to that effect. However, the absence of contrition does not operate as a factor to increase the penalty, rather it precludes the making of a finding of mitigation on the grounds of contrition. 62 I find that that the respondents have cooperated with the applicant in admitting at an early stage in the legal process to relevant facts and contraventions. The need for specific and general deterrence 63 The penalties to be imposed must have regard to the element of deterrence, both general and specific. 64 As to general deterrence, the penalty imposed should have regard to the need to deter other persons and organisations from engaging in similar conduct. 65 As to specific deterrence, the penalties imposed should have regard to the previous conduct of the respondents with a view to deterring each of them specifically from engaging in future contraventions of industrial laws. 66 It is self-evident that the penalties imposed in the past have not caused the CFMEU or its officials to comply with the Fair Work Act. 67 As mentioned previously and subject to the application of the principle of proportionality, specific deterrence is a relevant consideration in relation to the penalties to be imposed upon the CFMEU, Mr Buchan, Mr McDonald, Mr Molina and Mr Harris because of their history of disregard for industrial laws. The range of proposed penalties 68 Following the decision of the High Court in Commonwealth of Australia v DFWBII; CFMEU v DFWBII (2015) 90 ALJR 113, supplementary submissions were made as to the appropriate penalty ranges for the admitted contraventions of s 348 of the Fair Work Act. 69 The applicant submitted that penalties within the following ranges should be imposed on the respondents for their contraventions of s 348 of the Fair Work Act: (a) As to the CFMEU, a total penalty in the range of $145,000 to $170,000 for five contraventions of s 348 of the Fair Work Act. The proposed total penalty of $145,000 to $170,000 is comprised of $30,000 to $35,000 for Mr McDonald's first contravention, $30,000 to $35,000 for Mr McDonald's additional contravention, $30,000 to $35,000 for Mr Buchan's contravention, $30,000 to $35,000 for Mr Molina's contravention and $25,000 to $30,000 for Mr Joshua's contravention. (b) As to Mr Buchan, a penalty in the range of $5,000 to $6,000. (c) As to Mr McDonald, a penalty in the range of $5,000 to $6,000 for each of Mr McDonald's two contraventions of s 348 of the Fair Work Act, for a total penalty of $10,000 to $12,000. (d) As to Mr Molina, a penalty in the range of $5,000 to $6,000. (e) As to Mr Joshua, a penalty of $4,000 to $5,000. (f) As to Mr McCullough, a penalty in the range of $3,000 to $4,000. (g) As to Mr Harris, a penalty in the range of $3,500 to $4,500. 70 The respondents submitted that penalties falling within the following ranges were appropriate: (a) As to the CFMEU, a total penalty in the range of $10,000 to $16,500 comprised of five separate penalties with each penalty being between $2,000 to $3,300. (b) As to Mr Buchan, a penalty in the range of $2,000 to $3,300. (c) As to Mr McDonald, a total penalty in the range of $2,000 to $3,300 comprised of two separate penalties in the range of $1,000 to $1,650, with the second contravention deserving a lesser penalty in recognition of it being less serious than the first contravention. (d) As to Mr Molina, a penalty in the range of $2,000 to $3,300. (e) As to Mr Joshua, a penalty in the range of $2,000 to $3,300. (f) As to Mr McCullough, a penalty in the range of $1,000 to $1,500. (g) As to Mr Harris, a penalty in the range of $1,000 to $1,500. 71 In assessing the appropriate penalties, the Court should adopt an approach whereby the maximum prescribed penalty for a contravention of s 348 of the Fair Work Act is to be reserved for the most serious of the contraventions. 72 Further, the principle of proportionality is important in this case because of the competing considerations between the rationale for the blockade and the very extensive record of prior contraventions of industrial laws by the CFMEU and by, in particular, Mr McDonald. The former consideration places the conduct of the respondents at a lower level of seriousness comprising, as it does, supporting workers who were the victims of the failure by their employer to pay them their outstanding wages. The latter consideration, however, demonstrating as it does, a cavalier attitude to compliance with the industrial law, invokes a need to set a penalty at a level which would give effect to the requirement for deterrence. 73 In my view, the following observations of the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465 at 477 in respect of the principle of proportionality are relevant to the balancing of those two considerations: [T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences… 74 In many instances, the past conduct of the CFMEU and, in particular, Mr McDonald, would require the Court to impose a heavy penalty to reflect the requirement for deterrence. However, the principle of proportionality requires that the circumstances of each case must be viewed separately to ensure that past history of the offender does not result in an imposition of a penalty which is disproportionate to the gravity of the offence concerned. 75 In my view, applying the proportionality principle, the penalties to be imposed should be at the lower level of the range for the following reasons. 76 First, as I have said, the rationale for the holding of the blockade was to support employees who had not for some weeks been paid wages to which they were lawfully entitled. The legitimacy of this concern by the CFMEU, is recognised in the agreed facts by the characterisation of the request made by the CFMEU for the payment of outstanding wages due to Concealed Interiors' employees as a "lawful request". 77 Secondly, the duration of the interference with the work on the site was only about three and a half hours. 78 Thirdly, there was no evidence of any quantifiable economic loss being suffered by the parties concerned by reason of the blockade. 79 Fourthly, the respondents have cooperated with the applicant at an early stage of the proceeding by agreeing a statement of agreed facts and admissions. 80 Nevertheless, albeit that the cause for which the respondents organised and participated in the blockade, may be regarded as just, the means by which the respondents sought to pursue that cause was unlawful, and the maintenance of the rule of law requires that appropriate penalties be imposed. 81 Applying an instinctive synthesis, taking into account the factors to which I have referred, and having regard to the circumstances of the contraventions and the need to sustain public confidence in the statutory scheme for the enforcement of industrial laws, I impose the following penalties: (a) A total penalty of $12,000, comprising five single penalties of $2,400, on the CFMEU. (b) A penalty of $2,250 on each of Mr Buchan and Mr Molina. (c) A total penalty of $2,750 on Mr McDonald, comprising two separate penalties of $1,750 and $1,000. (d) A penalty of $2,000 on Mr Joshua. (e) A penalty of $1,000 on Mr McCullough. (f) A penalty of $1,250 on Mr Harris. 82 The application of the totality principle, does not, in my view, require any change to the penalties referred to in the preceding paragraph. However, if I am wrong in relation to my analysis in respect of a single course of conduct at [51] to [58] above, I would use the totality principle to adjust the penalties to be imposed, to the penalties referred to in the preceding paragraph. 83 I will, accordingly, make the appropriate declarations and make orders for the imposition of the penalties referred to above. I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 30 May 2016 SCHEDULE OF PARTIES WAD 289 of 2014 Respondents Fourth Respondent: JOSEPH MCDONALD Fifth Respondent: WALTER (VINNIE) MOLINA Sixth Respondent: PETER JOSHUA Seventh Respondent: CAMPBELL MCCULLOUGH Eighth Respondent: TAWA HARRIS