Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989 (9 September 2010)

Last Updated: 9 September 2010

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989

Citation:		Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989
Parties:		CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v SAFETY GLASS PTY LTD T/AS MELBOURNE SAFETY GLASS & ANOR
File number:		VID 628 of 2009
Judge:		TRACEY J
Date of judgment:		9 September 2010
Catchwords:		INDUSTRIAL – unions – right of entry - entry refused – appropriate penalty
Legislation:		Fair Work Act 2009 (Cth) ss 484, 487, 492, 501, 502, 512, 518, 539, 546
Cases cited:		Hills v Sutton [2007] FCA 2033, cited, applied Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357, applied
Date of hearing:	30 August 2010
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Applicant:	Mr J Bornstein
Solicitor for the Applicant:	Maurice Blackburn
Counsel for the Respondent:	Mr D Trindade
Solicitor for the Respondent:	Trindade, Farr & Pill

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 628 of 2009

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant
AND:	SAFETY GLASS PTY LTD T/AS MELBOURNE SAFETY GLASS & ANOR Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	9 SEPTEMBER 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. A penalty of $9,000 be imposed upon the respondent for a contravention of s 502(1) of the Fair Work Act 2009 (Cth) which occurred on 11 August 2009.
2. The penalty be paid to the applicant within 30 days.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 628 of 2009

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant
AND:	SAFETY GLASS PTY LTD T/AS MELBOURNE SAFETY GLASS & ANOR Respondent

JUDGE:	TRACEY J
DATE:	9 SEPTEMBER 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The Construction, Forestry, Mining and Energy Union (“the CFMEU”) is entitled, under its registered rules, to represent the industrial interests of some, at least, of the employees of Safety Glass Pty Ltd (“Safety Glass”). On various occasions before the middle of 2009 the CFMEU had attempted without success to enrol as members employees of Safety Glass who were working at the company’s premises at Normanby Road, Notting Hill. The Union’s fortunes changed in July 2009 when some of its officials attended at the premises and recruited 13 of the employees to be members of the CFMEU. The union’s success was short lived. Early in August each of the 13 employees gave notice to the CFMEU that he wished to resign his membership of the union.
2. Shortly afterwards two organisers of the CFMEU sought to exercise rights of entry to the Notting Hill premises to meet employees. They were denied entry by a senior manager of Safety Glass. The circumstances in which they came to be refused entry have given rise to the present proceeding.
3. The CFMEU applied to the Court for penalties to be imposed upon Safety Glass and the senior manager, Mr Steven Vasiljevic for contraventions of ss 501 and 502 of the Fair Work Act 2009 (Cth) (“the Act”).
4. Following discussions between the parties a statement of agreed facts was prepared and submitted to the Court. The CFMEU discontinued the proceeding against Mr Vasiljevic and only pressed for the imposition of a penalty on Safety Glass in respect of one contravention of s 502 of the Act.

THE AGREED FACTS

5. On 10 August 2009 Mr Andrew Vendramini and Mr Bruce Ross, both of whom were organisers employed by the CFMEU, gave Safety Glass notice under the Act of their intention to enter the premises on 11 August 2009 in order to hold discussions with employees. Shortly before 1:00 pm on 11 August 2009 Mr Vendramini and Mr Ross arrived at the car park outside the premises. As they were walking across the car park they were met by Mr Vasiljevic who sought information from them about their authority to enter the site and the purpose of their proposed entry. The organisers provided this information to Mr Vasiljevic.
6. Mr Vasiljevic told Mr Vendramini that he would not let the two organisers come into the building and would not give them a room in which to interview employees. Mr Vendramini advised Mr Vasiljevic that he and Mr Ross were entitled to go inside the building and to be provided with a room for use in interviewing employees.
7. Mr Vasiljevic told Mr Vendramini that any meeting was to take place in the undercover car park area and that if Mr Vendramini wanted to speak to a particular employee, he should advise Mr Vasiljevic of the identity of the employee and Mr Vasiljevic would bring that employee out. These exchanges led to some heated discussion between Mr Vendramini and Mr Vasiljevic during which Mr Vasiljevic continued to refuse Mr Vendramini and Mr Ross access to the building. Mr Vasiljevic made it clear to the two organisers that they should leave the premises.
8. After this discussion Mr Vasiljevic went inside the Safety Glass premises and Mr Vendramini and Mr Ross returned to their vehicles and left the area.

THE LEGISLATION

9. Part 3-4 of Chapter 3 of the Act provides for a framework within which union officials may exercise a right of entry to premises occupied by employers. By s 512 Fair Work Australia may issue entry permits to union officials. A union official who holds a permit and who wishes to enter premises must give the employer an entry notice at least 24 hours before exercising a right of entry: see s 487. The entry notice must specify the premises to be entered, the day of entry and the name of the union of which the permit holder is an official: see s 518(1). If the proposed entry is for the purpose of holding discussions with employees the entry notice must contain certain additional details: see ss 484 and 518(3). If these conditions are satisfied the permit holder is entitled to enter the premises: see s 484. It is implicit in s 492(1) of the Act that, once a permit holder has been admitted to an employer’s premises, the employer is required to respond positively to any reasonable request that a particular room be made available in which the permit holder may hold discussions with workers.
10. Section 502(1) provides that a person must not intentionally hinder or obstruct a permit holder who is exercising his or her rights of entry under Part 3-4 of the Act. A contravention of this provision renders the offender liable to a civil penalty: see s 539(1). If the offender is a corporation the maximum penalty which may be imposed for a contravention of s 502(1) is $33,000: see ss 539(2) and 546(2)(b). A union has standing to apply for the imposition of a penalty if it is affected by the contravention: see s 539(2). This Court has jurisdiction to order that a person who has contravened a civil remedy provision pay a pecuniary penalty: see s 546(1).
11. The parties are agreed and I find that:
    • Both Mr Vendramini and Mr Ross were the holders of entry permits under s 512 of the Act.
    • The notice given on 10 August 2009 satisfied the requirements of ss 484 and 518(3) of the Act.
    • On 11 August 2009 Mr Vasiljevic acted as Safety Glass’s agent in dealing with Mr Vendramini and Mr Ross.
    • Mr Vasiljevic hindered or obstructed Mr Vendramini and Mr Ross in exercising their rights of entry under the Act thereby contravening s 502(1).
    • The CFMEU was a person affected by the contravention.

CONSIDERATION

12. As a result of the substantial agreement by the parties as to the facts and the legal consequences of the admitted conduct of Safety Glass, the task which I have to perform is a limited one. It is to fix an appropriate penalty for Safety Glass’s contravention of s 502(1).
13. The parties are agreed and propose that any such penalty should not exceed $11,000.
14. As I observed in Hills v Sutton [2007] FCA 2033 at [7]:

“The Court is not bound to accept and impose ... proposed penalties but will do so if persuaded that, in all the circumstances, they fall within the permissible range: Cf NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 at 290-1. In Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 at 565 Jessup J expressed the view, with which I respectfully agree, that the phrase “permissible range” in this context “refers to a range which would be permitted by the court, that is, a range within which the penalty is neither manifestly inadequate nor manifestly excessive.””

15. In determining an appropriate penalty the Court will have regard to all the circumstances of a particular case. There is no immutable list of considerations which must be taken into account although the principle of deterrence, both specific and general, will require consideration in each case: see Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357 at 374-7 [57]- [62] (per Branson and Lander JJ).
16. In addition to specific and general deterrence I consider that the following considerations have relevance in the circumstances of the present case:
    • The nature and extent of the conduct which led to the contravention of the Act.
    • The circumstances in which that conduct took place.
    • Whether there had been similar previous conduct by Safety Glass.
    • Whether or not the contravention was deliberate.
    • Whether senior management was involved in the contravention.
    • Whether Safety Glass has exhibited contrition.
    • Whether Safety Glass has taken corrective action.
    • Whether Safety Glass has co-operated with the CFMEU in its attempt to ensure compliance with the Act..
17. I have already outlined the nature of the contravening conduct and the circumstances in which it took place. The two union officials were attempting to exercise their undoubted right of entry to Safety Glass’s premises with a view to interviewing workers. The CFMEU was entitled to represent the industrial interests of employees working for Safety Glass. Their attempt to enter the premises was impeded by a senior employee of Safety Glass. He clearly acted deliberately. His reasons for acting in the manner in which he did have not been explained. Whatever the reasons, Safety Glass admits that his actions hindered or obstructed the CFMEU organisers in the exercise of their statutory right of entry.
18. The Act provides a detailed scheme to regulate the exercise, by union officials, of their right to enter an employer’s premises. Various restrictions are placed on the right of entry to minimise inconvenience to the employer or disruption to productive work. Provided, however, that the right of entry is exercised in accordance with the provisions of the Act, union officials are entitled to unimpeded access to business premises for prescribed purposes. This is an important right which enables unions to recruit members and protect the industrial interests of their members.
19. As already noted officials of the CFMEU had exercised rights of entry at Safety Glass’s premises, without obstruction, in the weeks leading up to the incident on 11 August 2009. Mr Vendramini and Mr Ross returned to the premises on 19 August 2009 and exercised their rights of entry. They were, on that occasion, provided with a room in which to have discussions with employees. No obstacle was placed in their way.
20. This proceeding was commenced on 2 October 2009. Until that occurred Safety Glass was unaware that the CFMEU was contemplating taking action against it. Once the proceeding had been commenced Safety Glass entered into discussions with the CFMEU which led to its acknowledgment of liability and left only the question of determination of quantum of penalty for the Court. Its co-operative approach ensured that the CFMEU was not forced to incur the expense of a contested hearing.
21. Safety Glass has not been found to have contravened the Act or any of its predecessors, prior to the events on 11 August 2009.
22. I infer, from the fact that the two organisers were given unimpeded access to the premises on 19 August 2009, that Safety Glass quickly appreciated that Mr Vasiljevic had acted improperly on 11 August 2009 and had taken steps to ensure that his error was not repeated.
23. As a result I do not consider that specific deterrence is a weighty consideration in the present case. General deterrence is. It must be made clear to employers that they are not entitled to deny access to their premises to union officials who are exercising lawful rights of entry under the Act.
24. In all the circumstances I consider that the appropriate penalty for the contravention is $9,000. This sum is within what I regard to be the “permissible range” of penalties which are available for a contravention of this kind in these circumstances which I have explained.
25. The parties are agreed that any such penalty should be paid to the CFMEU as the initiating party. Such an order is provided for in the Act (s 546(3)(b)) and is consistent with the general rule which is applied in such cases: see Plancor at 371 [44] (per Gray J). I will so order.
    

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 9 September 2010