Federal Court of Australia Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd [2024] FCA 443 File number: NSD 112 of 2023 Judgment of: BROMWICH J Date of judgment: 30 April 2024 Catchwords: EMPLOYMENT AND INDUSTRIAL RELATIONS – failure to comply with two protected action ballot order by failure to provide information by the required time – where failure to comply has caused delay in holding one of those ballots for protected industrial action – where respondent has admitted contravention – where parties have proposed agreed orders as to penalties – principles as to acceptance of proposed agreed penalties – agreed declarations made and agreed penalties imposed – no order made as to costs Legislation: Fair Work Act 2009 (Cth) ss 417, 462, 463(2) Cases cited: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 14 Date of hearing 30 April 2024 Counsel for the Applicant: Mr P Boncardo Solicitor for the Applicant: Transport Workers' Union Counsel for the Respondent: Mr K Brotherson Solicitor for the Respondent: Piper Alderman ORDERS NSD 112 of 2023 BETWEEN: TRANSPORT WORKERS' UNION OF AUSTRALIA Applicant AND: CLEANAWAY OPERATIONS PTY LTD Respondent order made by: BROMWICH J DATE OF ORDER: 30 APRIL 2024 THE COURT DECLARES THAT: 1. The respondent, Cleanaway Operations Pty Ltd, contravened s 463(2) of the Fair Work Act 2009 (Cth) by failing to comply with the direction in cl 7 of a protected action ballot order made by the Fair Work Commission in proceedings B2022/1808 and issued as PR748863, by not providing the ballot agent appointed by the Commission by 4.00 pm on 15 December 2022 with: (a) a list of its eligible employees; (b) the details of those employees specified in the direction; and (c) an accompanying declaration in accordance with r 3.15 of the Fair Work Regulations 2009 (Cth). 2. The respondent, Cleanaway, contravened s 463(2) of the Act by failing to comply with the direction in cl 7 of a protected action ballot order made by the Fair Work Commission in proceedings B2022/1828 and issued as PR748965, by not providing the ballot agent appointed by the Commission by 4.00 pm on 16 December 2022 with: (a) a list of its eligible employees; (b) the details of those employees specified in the direction; and (c) an accompanying declaration in accordance with r 3.15 of the Regulations. THE COURT ORDERS THAT: 3. The respondent, Cleanaway: (a) pursuant to s 546(1) of the Act, pay a penalty of $30,000 for the contravention the subject of the first declaration above; (b) pursuant to s 546(1) of the Act, pay a penalty of $15,000 for the contravention the subject of the second declaration above; (c) pursuant to s 546(3) of the Act, pay the sum of the two penalties imposed above, being $45,000, to the applicant, the Transport Workers' Union of Australia. 4. There be no order as to costs. THE COURT DIRECTS THAT: 5. An officer of the Registry provide an electronic copy of the joint submissions or statement of agreed facts or both, upon a request to do so being made by anyone. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMWICH J: 1 The applicant, the Transport Workers' Union (TWU), and the respondent, Cleanaway Operations Pty Ltd, have agreed upon declarations of contravention and civil penalties to be imposed for two admitted contraventions of s 463(2) of the Fair Work Act 2009 (Cth). The contraventions concern Cleanaway's failure, in December 2022, to comply in time with relevantly identical clauses in two protected action ballot orders (PABOs) made by the Fair Work Commission. The TWU sought the making of the PABOs following unsuccessful attempts at agreeing upon a new enterprise agreement, no protected industrial action being permitted by s 417 of the Fair Work Act during the life of the prior agreement. 2 The clauses of the PABOs not complied with in time required Cleanaway to provide the agent appointed to conduct the protected action ballot the names of employees to be balloted and other information by the working day after the orders were made. This was to permit the ballot to proceed and a declaration as to the outcome of the ballot to be made. If a majority of eligible workers voted, and industrial action was supported by a majority of those who voted, that in turn would permit protected industrial action to be taken. The entire regime is time critical and is appropriately given speedy attention by the Commission. 3 The two PABOs are referred to by the suburb of each worksite involved as the Erskine Park Orders and the Hillsdale Orders. The information was provided two working days' late for the former and one working day late for the latter. The end result was short delay for the ballot for the former, and no delay for the latter. The maximum penalty per contravention is $63,000. The parties have agreed to a penalty of $30,000 for not complying in time with the Erskine Park Orders and $15,000 for not complying in time with the Hillsdale Orders. The penalty is thus just under two-thirds of the maximum penalty for a single contravention for the two contraventions in a confined period. 4 In circumstances in which the contraventions have been admitted by Cleanaway, the parties seek to have the Court make the declarations jointly sought and impose the penalties agreed upon. In support of that joint approach, the parties have furnished an agreed statement of facts and joint submissions, and also rely upon a joint chronology filed last year. All three documents are clear and concise and I am satisfied that they can be relied upon with confidence. 5 The High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (French CJ, Kiefel, Bell, Nettle and Gordon JJ at [47]-[48] and [60]-[61] and Gageler J at [68]) approved the approach taken by a Full Court of this Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993 at [51], being a summary of the principles that had emerged from the prior Full Court decision in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. 6 While the TWU cannot be equated to a regulator, in a limited case such as this such I am prepared to treat a union as a reasonable proxy for a regulator. Accordingly, the principles that apply to that aspect of the assessment of a proposed penalty and declaration by way of a settlement between regulators and contraveners are apt to apply for present purposes. 7 Cleanaway is a substantial national company operating at some 300 sites around Australia, employing over 7,500 people and having very substantial income and profits. 8 Cleanaway has cooperated with the TWU, with real utilitarian benefits in terms of resolving the dispute. No record of prior or subsequent contraventions has been suggested. 9 I am satisfied that Cleanaway knew about the PABOs, including the two clauses, but still failed to comply in time. It does not appear to have been due to any deliberate defiance, as opposed to inadequate systems for compliance. I accept the indications that this has been addressed, and consider recurrence is unlikely. Accordingly, while specific deterrence has some role to play, the key issue is one of general deterrence. 10 In particular, I agree with the position stated in the joint submissions that it is imperative that all industrial parties comply with Commission orders and directions to ensure the efficacious functioning of the industrial relations system established by the Fair Work Act. The contraventions are of a kind that must be discouraged. General deterrence looms large, and a contravener may be liable to much more substantial penalties in less favourable circumstances. 11 I am satisfied that there is the necessary real question to be answered by the declarations sought, that the TWU had a legitimate interest in raising the issue and that Cleanaway was a proper contradictor. I agree that those proposed declarations are appropriate because, as jointly submitted, such declarations record publicly the Court's disapproval of the conduct, vindicate the bringing of the proceeding, record the basis upon which the controversy was quelled, assist industrial participants in being better informed about the consequences of non-compliance with Commission orders, assist regulators to carry out their enforcement functions, inform the public about Cleanaway's contravening conduct, and aid in general deterrence. I will therefore make the declarations in substance as sought, but with some changes in expression. 12 I am also satisfied that the penalties proposed are within an acceptable range and are therefore appropriate in all the circumstances. I will therefore impose the penalties agreed upon. 13 It is appropriate that I also direct the registry of this Court to provide an electronic copy of the joint submissions and/or agreed facts upon request by anyone. 14 There will be no order as to costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate: Dated: 30 April 2024