FEDERAL COURT OF AUSTRALIA Director of the Fair Work Building Industry Inspectorate v Ellen (The Longford Gas Plant Case) [2016] FCA 1395 File number: VID 147 of 2016 Judge: TRACEY J Date of judgment: 25 November 2016 Catchwords: INDUSTRIAL LAW – admitted contraventions of s 417 of the Fair Work Act 2009 (Cth), constituted by the taking of industrial action during the currency of an enterprise agreement – whether agreed orders and declarations should be made – agreed orders and declarations made – whether penalties should be suspended – penalties not suspended Legislation: Crimes Act 1914 (Cth), s 4AA Fair Work Act 2009 (Cth), ss 12, 186, 417, 539, 545, 546, 557 Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 (Vic) Longford Gas Conditioning Plant Project Construction Agreement 2013 Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) (2010) 199 FCR 373 Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (No 2) [2011] FCA 394 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476 Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445 Dinsdale v The Queen (2000) 202 CLR 321 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (Quest Apartments and Greek Community Centre) [2016] FCA 1262 Director of the Fair Work Building Industry Inspectorate v Abbott (No 6) [2013] FCA 942 Director of the Fair Work Building Industry Inspectorate v Merkx [2015] FCA 316 DP World Sydney Limited Ltd v Maritime Union of Australia (No 2) (2014) 318 ALR 22 Esso Australia Pty Ltd v Australian Workers' Union (2015) 253 IR 304 Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 3) [2011] FCA 579 Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498 Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275 Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] 1290 Hadgkiss v Aldin [(2007] ) FCA 2068164 FCR 394 Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 McDonald v Australian Building and Construction Commissioner (2011) 202 IR 467 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152 United Group Resources Pty Ltd v Calabro (No 7) (2012) 203 FCR 247 M Bagaric "Suspended Sentences and Preventive Sentences: Illusory Evils and Disproportionate Punishments" (1999) 22 University of New South Wales Law Journal 535 Date of hearing: 14 October 2016 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 66 Counsel for the Applicant: Mr D Star Solicitor for the Applicant: Clayton Utz Counsel for the Respondents: Mr Y Bakri Solicitor for the Respondents: Maurice Blackburn ORDERS VID 147 of 2016 BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE Applicant AND: ROBERT ELLEN First Respondent GIUSEPPE ALBANESE Second Respondent TONY BARNFIELD (and others named in the Schedule) Third Respondent JUDGE: TRACEY J DATE OF ORDER: 25 NOVEMBER 2016 THE COURT DECLARES THAT: 1. Whilst covered by an enterprise agreement that had not passed its nominal expiry date, the First to Fifteenth, the Seventeenth to Twenty-Seventh, the Twenty-Ninth to the Thirty-Second, and the Thirty-Fourth to the Forty-Fourth Respondents failed and refused to attend for work on 12 February 2015 from 2:00 pm to 5:30 pm, and on 13 February 2015, without authority from their employer, in contravention of s 417(1) of the Fair Work Act 2009 (Cth) ("the Act"). 2. Whilst covered by an enterprise agreement that had not passed its nominal expiry date, the Forty-Sixth to the Fifty-Second Respondents failed and refused to attend for work on 13 February 2015, without authority from their employer, in contravention of s 417(1) of the Act. 3. Whilst covered by an enterprise agreement that had not passed its nominal expiry date, the Twenty-Eighth and Forty-Fifth Respondents failed and refused to attend for work on 12 February 2015 from 2:00 pm to 5:30 pm, without authority from their employer, in contravention of s 417(1) of the Act. THE COURT ORDERS THAT: 4. The First to the Fifteenth, the Seventeenth to the Twenty-Seventh, the Twenty-Ninth to the Thirty-Second, and the Thirty-Fourth to the Forty-Fourth Respondents each pay a pecuniary penalty of $1,500 in respect of his contravention referred to in paragraph 1 above. 5. The Forty-Sixth to the Fifty-Second Respondents each pay a pecuniary penalty of $1,000 in respect of his contravention referred to in paragraph 2 above. 6. The Twenty-Eighth and Forty-Fifth Respondents each pay a pecuniary penalty of $500 in respect of his contravention referred to in paragraph 3 above. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT TRACEY J 1 This proceeding was brought by the applicant Director against 52 individual respondents. He sought orders for the imposition of pecuniary penalties against each respondent for contraventions of s 417(1)(a) of the Fair Work Act 2009 (Cth) ("the Act"). The contraventions arose from the refusal of each respondent to perform work at the Longford Gas Conditioning Plant on 12 and/or 13 February 2015. 2 The Director discontinued the proceeding against two of the respondents—the sixteenth, Mr Ian Harding and the thirty-third, Mr Drew Payne. Subsequent references, in these reasons, to "the respondents" collectively refer to all respondents other than these two. 3 The Director and the remaining 50 respondents entered into negotiations. As a result of those negotiations each of those respondents has admitted that he contravened s 417 of the Act. Together with the Director they have filed a statement of agreed facts and minutes of proposed consent orders. A copy of the statement of agreed facts is an annexure to these reasons. The sixth respondent, Mr Kevin Caldow, was not a party to the statement of agreed facts filed by the other respondents. He did, however, file his own statement which was in materially the same terms as that filed by the other respondents and the Director save that it did not contain a paragraph relating to redundancies at the site. 4 The parties have asked the Court to make declarations and orders which they jointly propose. BACKGROUND 5 At relevant times each of the respondents was employed by CBI Constructors Pty Ltd ("CBI") to perform work on the construction of the Longford Gas Conditioning Plant. 6 On 10 February 2015, a number of employees of CBI (including the respondents) met and purported to elect a fellow employee as a health and safety representative on the site. Shortly after the meeting the employee advised one of CBI's managers that he had been so elected. The manager immediately disputed the election for reasons that included that there was already an elected health and safety representative whose responsibilities extended to rigging work. 7 On the following day the employee's employment was terminated by CBI. The employee was advised that termination had occurred during the currency of a probation period because he had not "met the expectations of [CBI]" and because he had not "successfully integrated [himself] into [his] designated work groups, and the general culture of [CBI]." 8 At about 1.30 pm on 12 February 2015 a meeting of CBI employees was held in a carpark outside the construction site. The meeting was addressed by an officer of the Australian Workers' Union ("AWU"). 9 After the meeting concluded each of the respondents (except the forty-sixth to fifty-second) imposed a ban, limitation or restriction on the performance of work for the rest of that day. They failed or refused to perform any further work on that day. They took this action in response to the decision to terminate the other employee's services. 10 Each of the respondents, except the twenty-eighth and forty-fifth, imposed a ban, limitation or restriction on the performance of work on 13 February 2015 and failed or refused to attend for work on that day and failed or refused to perform any work at all after attending for work. This conduct occurred because the respondents who engaged in it objected to the termination of the services of their fellow employee. 11 On 13 February 2015, the Fair Work Commission, on application by CBI, directed the respondents to cease engaging in unprotected industrial action. Each respondent complied with those orders and each returned to work on 17 February 2015. This was the first scheduled working day after 13 February 2015. 12 On the days in question there were about 290 workers engaged at the site. The industrial action taken by the respondents on 12 and 13 February 2015 adversely affected CBI's productivity on those days. There was no evidence about the extent of any productivity or financial losses thus occasioned. 13 None of the respondents had previously been found to have contravened any provision of the Act. They have not since taken industrial action at the site. 14 As at 8 July 2016, 24 of the respondents had been made redundant and were no longer working at the site. Work was expected to be completed by the end of this year at which time all employees still engaged will also be rendered redundant. THE LEGISLATION 15 Section 417 of the Act relevantly provides that: "(1) A person referred to in subsection (2) must nor organise or engage in industrial action from the day on which: (a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; … whether or not the industrial action relates to a matter dealt with in the agreement or determination. (2) The persons are: (a) an … employee … who is covered by the agreement or determination; …" 16 It was common ground that the withdrawal of labour by the respondents on 12 and/or 13 February 2015 constituted "industrial action" within the meaning of s 19(1)(b) and (c) of the Act. It was also agreed that CBI and the respondents were, on both days, covered by the Longford Gas Conditioning Plant Project Construction Agreement 2013. That agreement was an enterprise agreement within the meaning of ss 12 and 417(1)(a) of the Act. Its nominal expiry date was 31 October 2017. 17 The Director alleged and the respondents admitted that they had contravened s 417(1) by engaging in industrial action on one or both of the days in question. THE RELIEF SOUGHT 18 The Director and the respondents jointly submitted that, in the circumstances, the Court should: (a) declare that each of the respondents had contravened s 417(1) of the Act; and (b) order each respondent to pay a pecuniary penalty of either $1,500, $1,000 or $500 by reason of his contravention. The basis of the differing amounts of proposed penalties was explained by the parties as follows: 41 of the respondents had failed to attend for work on both the afternoon of 12 February and all of 13 February 2015 ($1,500). seven of the respondents had failed to attend for work only on 13 February 2015 ($1,000). two of the respondents had failed to attend for work only on the afternoon of 12 February 2015 ($500). 19 The respondents submitted that they should only be required to pay one third of the penalty imposed on them and that the remaining two thirds should be suspended for a period of six months. Any suspended penalty would only become payable if the respondent was found to have contravened any provision of the Act during this period. The Director opposed the granting of any suspension. 20 I will deal immediately with the proposed monetary penalties and then consider the proposed declarations. THE COURT'S APPROACH TO THE PROPOSED PENALTIES 21 I have recently examined the authorities relating to the approach to be adopted by the Court when dealing with joint submissions from parties in relation to appropriate forms of relief and the principles which guide the Court in determining whether proposed penalties are appropriate: see Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 ("The Grocon Case") at [12]–[26], [39]–[42]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (Quest Apartments and Greek Community Centre) [2016] FCA 1262 at [21]–[24], [27]. I do not repeat what I there said but I have applied those principles (to the extent that they are relevant) in assessing the proposed pecuniary penalties. 22 It was common ground that one penalty should be imposed in respect of each respondent's conduct, but taking into account the period each engaged in industrial action. This contention was supported by the provisions of s 557(1) of the Act. The contraventions, notwithstanding the differences in their length, all arose from the same incident and sense of grievance and were confined within a total period of about 30 hours: cf Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445. 23 The starting point for identifying the permissible range of a pecuniary penalty is the statutory provisions prescribing the maximum penalties available for particular contraventions. The maximum penalty payable by an individual for a contravention of s 417(1) is 60 penalty units: see ss 539(2) and 546(2)(a) of the Act. A "penalty unit" was, at relevant times, a sum of $170: see s 12 of the Act and s 4AA of the Crimes Act 1914 (Cth). 24 As a result the maximum penalty which may be imposed on each of the respondents was $10,200. 25 The proposed penalties may thus be seen to be very lenient. This leniency was supported by the parties for a number of reasons. The respondents emphasised that the industrial action, taken by them, was taken in response to a perceived injustice to a fellow employee. None of the respondents stood personally to gain from his action. On the contrary, they lost wages for the period during which they had withdrawn their labour. None of the respondents had previously been found to have contravened the Act and none had done so in the period between February 2015 and the penalty hearing on 14 October 2016. Whilst the action, in each case, was engaged in deliberately, there was no evidence that CBI (or anyone else) had advised the respondents that their actions were unlawful prior to CBI applying to the Fair Work Commission, on 13 February 2015, for orders restraining the continuation of the industrial action. The respondents had complied with those orders. 26 Credit was also to be given to the respondents for co-operating with the Director by admitting the contraventions at an early stage in the proceeding and by becoming parties to the agreed statements of fact. A contested trial was avoided. 27 The respondents also emphasised the absence of any evidence about the economic impact of their industrial action. 28 The respondents did not put on any evidence about their capacity to pay the proposed penalties. I therefore proceed on the assumption that the penalties proposed, in each case, are within the financial means of each respondent. 29 The respondents resisted submissions, made by the Director, that the Court should infer that the industrial action would have continued but for the making of a cease and desist order by the Fair Work Commission and that the action had "adverse impacts on productivity" on the site. 30 I am not prepared to infer that the industrial action would have continued beyond 13 February 2015 had it not been for the Fair Work Commission's intervention. Any such conclusion would be purely speculative. In any event, the Court's task is to determine an appropriate penalty for the contraventions which did, in fact, occur. 31 It was an agreed fact that the dislocation of work on the two days, by a significant number of employees engaged on the site, had an adverse impact on CBI's productivity. In the absence of evidence as to the economic impact of the contraventions, little weight can be accorded to this consideration in assessing appropriate penalties. 32 It was common ground that the withdrawal of labour, by each respondent, constituted unprotected industrial action under the Act. The Act proscribes the taking of industrial action save in limited circumstances. During the currency of an enterprise agreement no such action is permissible. Agreements must contain provisions pursuant to which disputes such as that presently under consideration may be resolved without resort to bans or limitations on work: see s 186(6) of the Act. The decision of each respondent to take industrial action rather than have resort to the dispute settling mechanism in their enterprise agreement must, therefore, be viewed seriously: cf Esso Australia Pty Ltd v Australian Workers' Union (2015) 253 IR 304 at [175] (Jessup J); Director of the Fair Work Building Industry Inspectorate v Merkx [2015] FCA 316 at [28] (Besanko J). The catalyst for the strike action was the perceived injustice to a fellow employee. That does not diminish the seriousness of the contravention or otherwise assist the respondents. As Gilmour J observed in Hadgkiss v Aldin (2007) 164 FCR 394 at [97]: "The respondents' perception that Ballard's dismissal was unfair or unlawful did not constitute a warrant for the unlawful industrial action, nor does it constitute any relevant mitigating circumstance. It would be extraordinary if a wilful disregard of the main object of the legislation, and in particular, in this case, the promotion of the rule of law, should be regarded as somehow mitigating the contravention." The contraventions, with which his Honour was dealing, arose under the Workplace Relations Act 1996 (Cth). Section 417 of the Act, which the respondents have contravened, is one of the foundation stones on which the scheme of enterprise bargaining is based: disregard of the proscriptions (whether intentional or reckless) undermines the workplace stability which is meant to apply during the life of agreements. 33 It must, also, be borne in mind that deterrence, both specific and general, has the potential to assume great importance in pecuniary penalty cases. In Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476 ("the Queensland Construction Sites Case"), the High Court identified civil penalties regimes as being "primarily if not wholly protective in promoting the public interest in compliance" (at 490). Their Honours quoted with approval the observation of French J in this Court that: "The principal, and I think probably the only, object of the penalties imposed by s 76 [of the Trade Practices Act] is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act": Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152. 34 The importance of deterrence in the present context has been emphasised repeatedly by judges in this Court: see, for example, Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290 at [18] (Flick J); Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275 at [59]–[62] (Gilmour J) and, on appeal, Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 at [32] (Allsop CJ, Mansfield and Siopis JJ); Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (No 2) [2011] FCA 394 at [19] (Barker J); Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 3) [2011] FCA 579 at [36] (McKerracher J) and Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498 at [39] (Gilmour J). 35 It was not suggested that specific deterrence should be treated as a significant consideration in the circumstances of the present case. It was agreed that no respondent had previously contravened the Act. On the other hand none of them proffered an apology, expressed contrition or gave an assurance that he would, in future, familiarise himself with and observe the legal constraints which fell upon him under the Act. 36 General deterrence emerges as a much weightier consideration. There are, literally, hundreds of thousands of employees who are covered by enterprise agreements. Many of these are engaged, like the respondents, in the construction industry. It is necessary to make plain that resort to unprotected industrial action should not be a knee-jerk (or other) response to incidents occurring in the workplace, especially when lawful avenues exist and are provided for in enterprise agreements. Contraventions of provisions such as s 417(1) must attract meaningful penalties lest the purposes served by them be undermined. 37 I have given anxious consideration to the question of whether the proposed monetary penalties could be regarded as being manifestly inadequate. Having weighed up the competing considerations I have come to the conclusion that they fall (just) within the permissible range. As a result it is appropriate that I impose the penalties proposed by the parties. 38 The question which then arises is whether I should accede to the respondents' request that two thirds (or some lesser portion) of the penalties to be imposed be suspended for a period of six months. 39 As already noted, the Director opposed the that request. 40 All parties were agreed that the Court could, in its discretion, suspend some or all of the operation of the orders for the payment of pecuniary penalties and do so for a stipulated period. 41 The source of the Court's power to suspend the operation of a pecuniary penalty order for a specific period and subject to conditions is to be found in s 545(1) of the Act which empowers the Court to "make any order the court considers appropriate" if satisfied that a contravention of a civil remedy provision, such as s 417(1), has occurred. 42 This power has been exercised by the Court on few occasions. I will return, later in the reasons, to those cases. 43 The respondents advanced a number of reasons which, they contended, collectively supported the suspension which they sought. The considerations on which they relied overlapped, to a large extent, with the mitigatory factors to which I have referred above at [25]–[26]. In addition, they contended that the following factors supported the proposed suspension: The conditional suspension would operate as a specific deterrent on each respondent who would know that any further breach of the Act, during the six-month period, would mean that the remainder of the penalty would become payable. Some of the respondents were no longer working at the site and all would be redundant by the end of the year. The declarations, on which the parties had agreed, would, themselves, have a deterrent effect. 44 The parties identified five cases in which the Court had considered submissions that some or all of pecuniary penalties to be imposed on employees should be suspended. All accepted that none of these cases was on all fours with the present and that the exercise of the Court's discretion, in each case, turned on its peculiar facts. 45 The respondents placed particular reliance on the decision of McKerracher J in United Group Resources Pty Ltd v Calabro (No 7) (2012) 203 FCR 247 in which his Honour wholly suspended agreed pecuniary penalties for breaches of various provisions, including s 417, of the Act. The case arose out of protracted strike action by workers at a natural gas project in Western Australia. The project was planned to continue for many years. The strike action constituted unprotected industrial action. The Court granted interim injunctions which required the workers to cease taking that action. 46 When final orders were made they included wholly suspended daily monetary penalties for breaches of various provisions of the Act, including s 417. The suspended penalties were to become payable in the event that a respondent was found to have contravened the Act at any time within seven years from the date on which the orders were made. In addition, each respondent was restrained, by injunction, for a period of seven years, from taking industrial action on the project or related projects of the kind which had led to the imposition of the penalties. In determining that it was appropriate wholly to suspend the monetary penalties, his Honour had regard particularly to "the length and breadth of the terms of the injunction" (at 274). 47 In Director of the Fair Work Building Industry Inspectorate v Abbott (No 6) [2013] FCA 942 Gilmour J imposed pecuniary penalties on individual employees in the order of $10,000. Some of the employees had engaged in contravening conduct on other occasions; others had not. His Honour ordered that the penalties imposed on those who had not separately contravened the Act be suspended, to the extent of 50 per cent of the penalty, for a period of three years. The penalties imposed on those who had separately engaged in contravening conduct were not suspended. The project on which the contravening conduct had occurred had, by the time his Honour came to impose penalties, been completed. No on-going injunctions were in place. 48 In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) (2010) 199 FCR 373, Barker J refused to suspend a pecuniary penalty imposed on one of the individual respondents because of prior contraventions by the person concerned. His Honour considered that any "suspension of the fine would suggest the contravention was not serious when I consider it was in fact serious": at 393. On appeal, a Full Court rejected a submission that Barker J had erred by having regard to the seriousness of the respondent's contravention when deciding not to suspend the penalty: see McDonald v Australian Building and Construction Commissioner (2011) 202 IR 467 at 477–8. 49 Mention was also made, in this context, of Hadgkiss v Aldin. In that case Gilmour J imposed a series of pecuniary penalties. He required that one third of each penalty be paid and suspended the remaining two thirds for a period of six months. His Honour did not, however, explain his reasons for exercising his discretion in this manner. 50 This body of authority does not yield any clearly expressed guidance as to the underlying rationale for suspending pecuniary penalties. 51 The Director faintly submitted that some assistance might be provided from authorities which had considered the criminal sentencing option, available in some States, of suspended sentences of imprisonment. This option has been regarded with both favour and disfavour: see M Bagaric "Suspended Sentences and Preventive Sentences: Illusory Evils and Disproportionate Punishments" (1999) 22 University of New South Wales Law Journal 535. The Director drew attention to the removal of the suspended sentencing option in Victoria by the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 (Vic) and to the then Attorney-General's explanation that: "… suspended sentences are a legal fiction that pretends offenders are serving a term of imprisonment when in fact they are living freely in the community, not subject to any restrictions, community service obligations or reporting requirements. Offenders effectively walk away unpunished and often then go on to commit further crimes." 52 A similar option was abolished in New South Wales in 1974 but was restored in 1999: see the survey appearing in the reasons of Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 345. 53 In Dinsdale, all members of the Court gave some consideration to the purposes served by suspended sentences of imprisonment: see at 329 (Gleeson CJ and Hayne J); 330 (Gaudron and Gummow JJ) and 334–337; 346–350 (Kirby J). While recognising that a major purpose of suspending custodial sentences was the rehabilitation of the offender, other purposes could be discerned. Contrition and other mitigatory factors and "mercy" may, in a given case, assume importance in the exercise of the sentencing discretion. 54 Such considerations have little, if any, relevance to the exercise of a discretion to suspend a pecuniary penalty. As I have already said, in the Queensland Construction Sites Case at 490, French CJ, Kiefel, Bell, Nettle and Gordon JJ quoted with approval the observation, made by French J in this Court in Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152 that: "[p]unishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Part IV [of the Trade Practices Act]. … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act." (Emphasis added) 55 Similar sentiments have been expressed in relation to the imposition of pecuniary penalties under industrial regulatory legislation: see, for example, DP World Sydney Ltd v Maritime Union of Australia (No 2) (2014) 318 ALR 22 at 27; Queensland Construction Sites Case at 504 (Keane J). 56 In McDonald the Full Court (at 477–8) distinguished Dinsdale and held that the primary judge had not erred by having regard to the seriousness of Mr McDonald's contravention and his prior contraventions when determining whether or not to suspend the payment of a pecuniary penalty. 57 The Court's discretion to suspend a pecuniary penalty, imposed under the Act, is not to be constrained by prescriptive principles. Nonetheless, some general observations may be made. Any penalty imposed must be meaningful and operate as a deterrent both to the contravenor and any others who might, in future, be tempted to engage in similar conduct. The penalty must also reflect the need to maintain public confidence in the operation of the enterprise agreements which regulate the employment of large numbers of Australian workers: cf Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 580. A meaningful penalty will be one that falls within a permissible range, having regard to all of the circumstances of a particular case. Any suspension of whole or part of the penalty will necessarily reduce the amount immediately payable. If the penalty imposed is in the low end of the range then a suspension may take the penalty payable outside the range. Conversely, if the penalty imposed is at the high end of the range there may be greater scope for suspension with the reduced figure remaining within the permissible parameters. 58 The penalty must be meaningful, not only for the purpose of specific deterrence, but also taking into account the important need for general deterrence. If the suspension is conditional on the contravenor's good conduct during a particular period it may be justified on the basis that it will operate as an incentive to the contravenor to be of good behaviour during that period. In this regard it is notable that the main reason why McKerracher J was prepared wholly to suspend the pecuniary penalties which he had imposed in Calabro (No 7) was that the contravenors were also restrained, by injunction, from any repetition of the contravening conduct for a period of seven years. If, during that period, any further contraventions occurred a contravenor would be liable to pay the suspended penalty and be subject to prosecution for contempt of Court. General deterrence, on the other hand, requires that the amount imposed must be sufficiently high as to serve to dissuade others from acting in a similar way. This object will not be achieved if the amount payable, following suspension, is very low. 59 Other considerations which may, in a given case, have a bearing on the question of whether or not to suspend (wholly or in part) a monetary penalty include the seriousness of the offending conduct, the contravenor's prior conduct and the prospect of any future contravention coming to the attention of the applicant in a particular proceeding. This latter consideration may weigh more heavily in industries, such as the construction industry, in which workers regularly move between employers and projects and may assume greater relevance where the project on which the misconduct occurred has been completed by the time the Court comes to consider appropriate penalties and whether or not to suspend them. 60 As I have already observed, the penalties proposed by the parties in this case fall at the lower end of the appropriate range. All are fixed at figures that are less than 10 per cent of the available maximum. Were the proposed suspensions to be ordered the respondents, depending on the group into which they fell, would be required to pay either $500, $333 or $166. 61 I make due allowance for the fact that each of the respondents is an individual who has no history of contravening the Act. I also have taken into account the mitigatory factors on which each respondent relied. I am not, however, persuaded that any suspension is warranted. In each case the contravention was serious and became more so the longer the respondent's withdrawal of labour continued. To order suspension, either as to the two thirds proposed by the respondents, or any lesser proportion, would be to fail to satisfy a principal object of the pecuniary penalties regime of deterring future contraventions by others. Shortly put: any reduction in the amount payable would not be a meaningful penalty in the circumstances of this case. 62 I therefore will not make any orders suspending the payment of the penalties. DECLARATIONS 63 In the Grocon Case at [5]–[7], I dealt with the circumstances in which it is appropriate for declaratory relief to be granted and the purposes served by such relief. I do not repeat what I there said. 64 The declarations, proposed by the parties in the present proceeding, have been carefully drafted. They explain clearly and succinctly the conduct which led each respondent to contravene the Act. They serve the useful purpose of explaining, for the benefit of those who might, in future, be tempted to act in a similar manner, why such conduct is unlawful and should not be repeated. 65 The declarations proposed should be made. CONCLUSION 66 The declarations and orders sought jointly by the Director and the respondents will be made. The penalties will not be suspended. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 25 November 2016 SCHEDULE OF PARTIES VID 147 of 2016 Respondents Fourth Respondent: LUKE BONACCI Fifth Respondent: ROBERT BONACCI Sixth Respondent: KEVIN CALDOW Seventh Respondent: TIMOTHY CLANCY Eighth Respondent: DAVID COCHRANE Ninth Respondent: TAYLOR COLLINS Tenth Respondent: LACHLAN CRUICKSHANK Eleventh Respondent: SCOTT DALY Twelfth Respondent: ANDREW DIXON Thirteenth Respondent: RONNIE DOUCH Fourteenth Respondent: BRETT GALLATLY Fifteenth Respondent: DARREN GOODALL Sixteenth Respondent: IAN HARDING Seventeenth Respondent: CRAIGE HARRIS Eighteenth Respondent: JASON HEENAN Nineteenth Respondent: JARROD HEINEMANN Twentieth Respondent: PAUL HORAN Twenty-First Respondent: AARON HORN Twenty-Second Respondent: DAVID JOINER Twenty-Third Respondent: GARY LAMONT Twenty-Fourth Respondent: JASON LEONARD Twenty-Fifth Respondent: ROSS LONGMORE Twenty-Sixth Respondent: JUSTIN LUXFORD Twenty-Seventh Respondent: JOSHUA MADEX Twenty-Eighth Respondent: CHRISTOPHER MARTIN Twenty-Ninth Respondent: MICHAEL MAYZE Thirtieth Respondent: STEWART MCLURE Thirty-First Respondent: LEO MARTINO Thirty-Second Respondent: DONNY MUDITA Thirty-Third Respondent: DREW PAYNE Thirty-Fourth Respondent: DAVID PITKETHLY Thirty-Fifth Respondent: LIVIO PIZZOL Thirty-Sixth Respondent: CHRISTOPHER SAWYER Thirty-Seventh Respondent: LLOYD SCHAECHE Thirty-Eighth Respondent: ROBERT SHERRY Thirty-Ninth Respondent: ROBERT SLOAN Fortieth Respondent: BRADLEY STEWART Forty-First Respondent: SCOTT SYNE Forty-Second Respondent: JOSHUA STUBBE Forty-Third Respondent: MITCHELL TATTERSON Forty-Fourth Respondent: STUART TAYLOR Forty-Fifth Respondent: STEVEN WALSH Forty-Sixth Respondent: DALE BARTLETT Forty-Seventh Respondent: ZEBULON JONES Forty-Eighth Respondent: CAMM MCKINNON Forty-Ninth Respondent: MICHAEL MCKINNON Fiftieth Respondent: JEFFREY ROSSITER Fifty-First Respondent: LEIGH TAPPENDEN Fifty-Second Respondent: JOHN WEBB ANNEXURE