Federal Court of Australia Fair Work Ombudsman v Brook [2024] FCA 262 File number: SAD 43 of 2022 Judgment of: SNADEN J Date of judgment: 18 March 2024 Date of publication of reasons: 20 March 2024 Catchwords: INDUSTRIAL LAW – right of entry – permit holder exercising rights contravened ss 499 and 500 of the Fair Work Act 2009 (Cth) – agreed contraventions – agreed penalty ranges – determination of appropriate penalties – civil double jeopardy – analysis of the nature, gravity, character and seriousness of the contraventions – significance of union's history of contravening conduct – significance of corrective action – penalties imposed – appropriateness of declaratory relief Legislation: Fair Work Act 2009 (Cth) ss 499, 500, 539, 545, 550, 556, 570, 793 Cases cited: Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393 Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 281 FCR 365 Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161 Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934 Division: Fair Work Division Registry: South Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 33 Date of hearing: 18 March 2024 Counsel for the Applicant: Mr M Felman KC with Mr A Crocker Solicitor for the Applicant: MinterEllison Counsel for the Respondents: Mr S Blewett Solicitor for the Respondents: CFMEU ORDERS SAD 43 of 2022 BETWEEN: FAIR WORK OMBUDSMAN Applicant AND: TRAVIS ALTON BROOK First Respondent CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION Second Respondent order made by: SNADEN J DATE OF ORDER: 18 MARCH 2024 THE COURT ORDERS THAT: 1. The first respondent pay a pecuniary penalty totalling $4,500.00. 2. The second respondent pay a pecuniary penalty totalling $40,000.00. 3. The penalties referred to in orders 1 to 2 above be paid to the Commonwealth within 28 days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) SNADEN J: 1 The following reasons were given ex tempore at the conclusion of a brief hearing that took place in this matter on Monday, 18 March 2024. At that hearing (and by the written submissions furnished ahead of it), it emerged that there were few, if any, issues of fact or principle that were materially in dispute; and the relief that each side proposed for the court's consideration differed only by modest sums. Given that substantial level of agreement—and notwithstanding that its reasons for doing so might not address all of the issues that were the subject of submissions quite to the same level of detail sometimes offered by this court's civil penalty jurisprudence—the court resolved to determine the application immediately. 2 At approximately 7:30am on Wednesday, 15 December 2021, the first respondent, Mr Brook, attended upon a construction site that was then located at 166 The Parade, Norwood, in South Australia (the "Site"). He was there to exercise a right or rights of entry conferred upon him in his capacity as a "permit holder" under pt 3-4 of the Fair Work Act 2009 (Cth) ("FW Act"). It was not the first time that he had done so; and he was aware from at least one previous visit that the principal in charge of the Site, Synergy Construct Australia Pty Ltd ("Synergy"), maintained a policy at it by which visitors were required to be escorted by Synergy personnel whenever present at the Site. 3 Upon his arrival on 15 December 2021, Mr Brook proceeded to the Site office, where he apparently expected to be received by somebody from Synergy. That did not occur, as the Site office was unoccupied at the time. Mr Brook waited for a few minutes but nobody from Synergy arrived. He then decided that he would take himself onto the Site, in obvious breach of the visitors policy referred to in the preceding paragraph (hereafter, the "Synergy Visitors Policy"). Before doing so, he made no attempt to contact any of Synergy's site managers. That was so despite the fact that their contact details were displayed on signage at the entrance through which Mr Brook gained access to the Site. 4 Whilst on the Site proper, Mr Brook exercised the right or rights of entry that he had intended to exercise. He made what appear to have been unremarkable and proper inquiries about matters of workplace safety. Save for his disregard of the Synergy Visitors Policy, he did not conduct himself inappropriately, nor engage in any confrontation or aggression with any Synergy employees. His visit to the Site lasted approximately 60 minutes, of which something in the order of 10 to15 minute was unsupervised. 5 By an amended originating application and further amended statement of claim dated 17 October 2023, the applicant—who is the holder of a statutory office created under the FW Act—maintains that, by his conduct on 15 December 2021, Mr Brook contravened each of ss 499 and 500 of the FW Act. She presses for various forms of relief against Mr Brook in connection with those contraventions. In addition, the applicant maintains that Mr Brook's employer, the second respondent (the "CFMEU"), is liable as an accessory to his statutory contraventions, such that relief should issue against it, too. 6 For the reasons that follow, I am satisfied that each of the respondents contravened each of ss 499 and 500 of the FW Act and that it is appropriate to impose upon each of them a civil penalty under s 546(1) of the FW Act. The parties have agreed upon ranges within which such penalties should fall. I consider that those ranges are appropriate. In Mr Brook's case, I will set the penalty at $4,500.00. In the CFMEU's case, it will be set at $40,000.00. The statutory regime 7 Part 3-4 of the FW Act is headed, "Right of entry". It confers various rights to enter premises without invitation or consent. Those rights are conferred upon "permit holders". It is not presently in doubt that Mr Brook was, at relevant times, a permit holder. 8 The FW Act contains a number of provisions that regulate the manner in which permit holders must and must not exercise their rights of entry under pt 3-4. Amongst them are ss 499 and 500, which provide as follows: 499 Occupational health and safety requirements A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises. … … 500 Permit holder must not hinder or obstruct A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner. … 9 Each of those sections is a civil remedy provision: FW Act, s 539(1). Part 4-1 of the FW Act confers upon this court power to make any order that it considers appropriate in respect of a person who contravenes such a provision: FW Act, s 545(1). That power extends to the imposition of pecuniary penalties of up to (relevantly for present purposes) $13,320.00 for natural persons and $66,600.00 for bodies corporate. 10 Section 550 of the FW Act serves to extend liability for contraventions of civil remedy provisions to those who are "involved in" their commission by others. It provides (and provided) as follows: 550 Involvement in contravention treated in same way as actual contravention (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)). (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 11 A person who, by engaging in particular conduct, contravenes more than one civil remedy provision is not liable to the imposition of more than one pecuniary penalty in respect of that conduct: FW Act, s 556. 12 Section 793 of the FW Act is concerned with the attribution to bodies corporate of conduct and states of mind engaged in by their human agents. The section relevantly provides as follows, namely: 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. … Principles to be applied 13 The respondents accept that the Synergy Visitors Policy applied to Mr Brook's attendance at the Site on 15 December 2021; and that it qualified, for the purposes of s 499 of the FW Act, as a reasonable request by the occupier of the Site that Mr Brook should comply with an applicable occupational health and safety requirement. 14 It is also accepted that, by not complying with it, Mr Brook acted in an improper manner whilst exercising rights in accordance with pt 3-4 of the FW Act. 15 On the strength of those concessions, I am satisfied—and find—that, by entering onto the Site on 15 December 2021 and making his way around it without being escorted by somebody from Synergy, Mr Brook contravened each of ss 499 and 500 of the FW Act. On the present state of binding authority, the CFMEU is liable under s 550 of the FW Act as an accessory to Mr Brook's contravention: Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393, 418 [121] (Charlesworth J); Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 281 FCR 365, 373-378 [36]-[53] (Reeves and O'Callaghan JJ, with whom Charlesworth J agreed). That is apparently so by operation of s 793 of the FW Act and its attribution to the CFMEU of Mr Brook's conduct and state of mind. None of that is controversial and, although tempted, I needn't say anything more about it. I am satisfied—and find—that by engaging in the same conduct as that in which Mr Brook engaged and by doing so with the same state of mind as that with which he engaged in it, the CFMEU was involved in his contraventions of ss 499 and 500 of the FW Act; and, thus, itself contravened those sections. 16 The only question for the court to determine is what relief ought to be granted in light of that conduct. Two principal species of relief are sought: declaratory relief and the imposition of pecuniary penalties. Neither is opposed, although the respondents propose that the pecuniary penalties that ought to be imposed should be at the lower end of the agreed penalty ranges. 17 Senior Counsel for the applicant wisely opted not to elaborate orally upon his written submissions as to the appropriateness of declaratory relief and I do not propose to say much about that subject. I am resolved to impose upon both respondents a pecuniary penalty; and, in light of that, there is no point in also granting relief in the form of binding declarations of right. I accept—and the authorities make clear—that the court has a power to do so in cases like this; but I am singularly unable to see how it might here result in anything other than a set of orders slightly longer than would otherwise be necessary. For reasons equivalent to those that I have written repeatedly—but most recently in Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934, [61]-[64]—I see no basis for thinking that the granting of declaratory relief will visit any consequence over and above what will flow from the findings that I have recorded in these reasons and the imposition of the penalties that I intend to impose in consequence of them. 18 I should address, specifically, the contention that declaratory relief is appropriate here because Mr Brook's conduct and the conduct that is attributed to the CFMEU will only attract single penalties, despite amounting in each case to two statutory contraventions. It is said that "[i]t could, in the absence of declarations, be overlooked that the [r]espondents' unlawful conduct contravened two provisions of the FW Act". It is not clear to me who it might be thought that that reality would escape. Presumably, it would be other permit holders; or others whose conduct might suffice to contravene the same provisions. But how might anybody be deterred—or, indeed, how might any, even remotely beneficial outcome be realised—by the court's stating in the form of binding declarations of right that which has already been stated in these reasons and that which will be the subject of penalty? Accepting, as I do, that other judges might reach a different conclusion, I am not persuaded that declaratory relief of the kind for which the applicant moves would visit any meaningful consequence in this case and it should be declined at least for that reason. 19 I move to the question of pecuniary penalties. The principles that regulate the court's assessment of what, in any given case, is an appropriate pecuniary penalty to be imposed in respect of conduct engaged in in contravention of statutory injunctions such as ss 499 and 500 of the FW Act are settled and were not materially in doubt. I do not propose to restate them. They emerge with clarity from the decision of the High Court in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 and were the subject of recent recitation in Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161, [21]-[24] (Charlesworth, Snaden and Raper JJ). 20 In fashioning a pecuniary penalty, the court must have regard to the nature of the conduct that warrants it. Here, I have little hesitation in characterising Mr Brook's conduct—assessed by itself, without the backdrop of any historical or other context—as being at the lower to middle level of seriousness. Plainly, he ought not to have done what he did and I should not wish to understate the importance of permit holders being held to what I would confidently assume were appropriate occupational health and safety standards at the Site. Further, it is to be remembered that rights conferred by pt 3-4 of the FW Act are conferred in preference to what are the undoubtedly important liberties that occupiers otherwise enjoy to exclude from their premises such would-be visitors as they see fit. 21 Nonetheless, it is to be borne in mind that, unlike some other matters in which this court has had to confront contraventions of pt 3-4 of the FW Act, Mr Brook made at least some attempt, or appears to have made at least some attempt, to comply with what he knew was applicable; and, when he found himself unable to find anybody to escort him around the Site, he comported himself, by all accounts, appropriately and without what sometimes presents in other matters as an aggressive or arrogant sense of entitlement. On any view, his contravention was of short duration. 22 Counsel for the respondents submitted that Mr Brook's conduct should properly be described as ill-considered rather than deliberate. Senior counsel for the applicant objected to that characterisation and submitted that the court had no evidence before it from which any assessment of Mr Brook's state of mind might flow. I accept that submission; although, ultimately, I am not sure that the competing submissions were wildly dispersed. 23 Other features of the present case inform the penalty that should appropriately attach to Mr Brook in consequence of his conduct. Mr Brook has not previously contravened the FW Act, although there is one other episode on his record that involves acceptance on his part of a contravention of s 500. That episode occurred prior to 15 December 2021 and was said to have involved his having followed another, more experienced organiser onto part of a construction site that he ought not to have entered. I was informed that no relief has been granted in respect of that conduct, although proceedings are ongoing. 24 Unlike some other matters before the court, this is not a case in which there is reason to suspect, in light of his history, that a deterrent much greater than might otherwise be needed is necessary to motivate Mr Brook's future compliance with the FW Act. 25 Further, Mr Brook has participated in some CFMEU-organised training about the nature of the rights that he possesses as a permit holder under pt 3-4 of the FW Act, and indeed about other aspects of the legislation. That training has been both remedial (in that it has fixed upon the nature of his conduct on 15 December 2021) and preventative (in that it has addressed the limits of what pt 3-4 of the FW Act confers). Further, Mr Brook has been moved to make the admissions that he has in this case. In each case, those realities bespeak an acceptance of wrongdoing on Mr Brook's part, which in turn should inform the deterrent effect—or the level of "oppressive severity"—that the court must strive to achieve by the imposition upon him of a pecuniary penalty. 26 Against that, I am conscious that Mr Brook is one of a number of permit holders who hold office within the CFMEU. As will shortly be seen, the CFMEU, through those officers, has a less than exemplary record of compliance with the requirements of pt 3-4 of the FW Act. It is important that the penalty to be imposed against Mr Brook should deter not only him from future transgressions but also the cohort of other permit holders within the CFMEU. 27 In all of the circumstances, I am satisfied that a penalty set at $4,500.00—approximately one-third of the maximum available—against Mr Brook will serve as an appropriate deterrent, both to him and others like him, against further contravention of the FW Act (and pt 3-4 specifically). 28 The circumstances of the CFMEU are different. Its record of statutory non-compliance is well-documented and needn't be rehearsed in any detail. The same may be said of its size and its significant financial resources, both of which loom large here. 29 That it has arranged for Mr Brook and some of its other officials to undergo training (both remedial and preventative) about the limits of the rights of entry conferred by pt 3-4 of the FW Act (amongst other things) undoubtedly reflects well upon the CFMEU; and, more specifically, reflects a willingness to address the problem that its history of statutory non-compliance bespeaks. It also suggests that there is at least some prospect that the likelihood of the repetition of conduct of the kind with which the court is here confronted is reduced somewhat. Nonetheless, to put it in simple (perhaps overly simple) terms: this keeps happening (even if at a reduced frequency, as counsel for the respondents contended). The penalty to be imposed against the CFMEU must reflect that reality, notwithstanding the undoubtedly positive steps that the union has taken to correct the conduct of its officials. 30 Mention should also be made of the CFMEU's efforts in making admissions in this case and facilitating its resolution predominantly by agreement. The fact that it has done precisely that on many prior occasions and yet continues to find itself on the wrong end of this court's judgment suggests that there might, in this case, be reason to doubt that it has made those concessions in recognition of any wrongdoing on its part. Although it is right to (and I do) take the CFMEU's admissions and its efforts to resolve this proceeding by agreement into account in fashioning an appropriate penalty, I am not persuaded that either bears heavily upon the court's assessment of what will be necessary specifically to deter repetition of contravening conduct in the future. 31 In all of the circumstances, I am satisfied that a penalty set at $40,000.00—approximately 60 per cent of the maximum available—against the CFMEU will serve as an appropriate deterrent against further contravention of the FW Act (and pt 3-4 specifically). 32 I will make orders imposing the penalties that I have identified. The parties jointly submit that those penalties should be imposed in respect of the contraventions of s 499 of the FW Act that I am satisfied occurred, and not in respect of the contraventions of s 500. Although I have no opposition to that course, it seems to me that the penalties that will be imposed will in fact be imposed in respect of the respondents' conduct, rather than in respect of the particular statutory provisions in breach of which it was undertaken. I am not persuaded that much turns upon the issue but, for the avoidance of doubt, I record that the penalties that I will impose will be imposed in light of my satisfaction that each of the respondents, by the conduct recorded above, contravened s 499 of the FW Act. 33 Section 570 of the FW Act precludes the making of an order for costs and, in any event, none was sought. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate: Dated: 20 March 2024