Lovewell v Pearson & Anor [2011] FMCA 102 (25 February 2011)

Federal Magistrates Court of Australia

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Lovewell v Pearson & Anor [2011] FMCA 102 (25 February 2011)

Last Updated: 28 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LOVEWELL v PEARSON & ANOR

[2011] FMCA 102

INDUSTRIAL LAW – FAIR WORK – Admitted contraventions of Workplace Relations Act 1996 (Cth) – agreed statement of facts – agreed penalties and orders – consideration of appropriate penalties to be imposed.

Building and Construction Industry Improvement Act 2005 (Cth), ss.4, 57, 73(1) Fair Work Act 2009 (Cth) Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Workplace Relations Act 1996 (Cth), ss.3, 285C, 285E. 285E(1), 737, 756, 767(1), 767(1)(b), 769(1)(a), 826, Schedule 10, Part 15 Workplace Health and Safety Act 1995 (Qld), ss.90B, 90D, Part 7A

Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited [2004] FCA 819 CFMEU v Merhis Constructions Pty Ltd [2010] FMCA 751 CPSU v Telstra Corporation Limited [2001] FCA 1364; (2001) 108 IR 228 Darlaston v Parker [2010] FCA 1382 Gregor v Setka (No. 2) [2010] FMCA 973 John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 865; (2009) 187 IR 400 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Minister for Industry, Tourism and Resources v Mobile Oil Australia Pty Ltd [2004] FCAFC 72 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 R v Hunter (1984) 36 SARC 101 R v Thompson (1975) 11 SASR 217 Standen v Feehan (No. 2) [2008] FCA 1574; (2008) 177 IR 276 Yardley v Betts (1979) 22 SASR 108

Applicant:

STEVEN LOVEWELL

First Respondent:

KANE PEARSON

Second Respondent:

AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES

File Number:

BRG 518 of 2010

Judgment of:

Jarrett FM

Hearing date:

2 February 2011

Date of Last Submission:

2 February 2011

Delivered at:

Brisbane

Delivered on:

25 February 2011

REPRESENTATION

Counsel for the Applicant:

Mr Murdoch

Solicitors for the Applicant:

Clayton Utz

Counsel for the first Respondent:

Ms Holland

Solicitors for the first Respondent:

Quinlan Miller & Treston

Counsel for the second Respondent:

Ms Holland

Solicitors for the second Respondent:

Quinlan Miller & Treston

ORDERS

THE COURT DECLARES THAT:

(1) The First Respondent contravened section 767(1) of the Workplace Relations Act 1996 (Cth).
(2) The Second Respondent contravened section 767(1) of the Workplace Relations Act 1996 (Cth).

THE COURT ORDERS THAT:

(3) Pursuant to section 769(1)(a) of the Workplace Relations Act 1996 (Cth), the First Respondent pay a pecuniary penalty in the amount of $4,500.00 in respect of the contravention of section 767(1) of the Workplace Relations Act 1996 (Cth).
(4) Pursuant to section 769(1)(a) of the Workplace Relations Act 1996 (Cth), the Second Respondent pay a pecuniary penalty in the amount of $16,500.00 in respect of the contravention of section 767(1) of the Workplace Relations Act 1996 (Cth).
(5) Pursuant to section 841 of the Workplace Relations Act 1996 (Cth), the penalties referred to in orders 1 and 2 above be paid into the consolidated revenue fund of the Commonwealth of Australia within 30 days of the date of this order.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 518 of 2010

STEVEN LOVEWELL

Applicant

And

KANE PEARSON

First Respondent

AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES

Second Respondent

REASONS FOR JUDGMENT

1. The issue in this case is to determine the appropriate orders to make and the appropriate pecuniary penalties to impose upon each respondent for their admitted breaches of certain provisions of the Workplace Relations Act 1996 (Cth).
2. Although the parties have agreed upon the orders the court should make and the penalties that it should impose, the court must nonetheless exercise its own discretion and fix what it considers to be the appropriate penalties: Standen v Feehan (No.2) [2008] FCA 1574; (2008) 177 IR 276 at [8] – [13] applying NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 at 290-291 and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72.

Background Facts

3. The application arises out of the actions of the First Respondent, Kane Pearson, who was at the relevant time an employee of the Second Respondent, the Australian Building Construction Employees and Builders’ Labourers’ Federation (Queensland Branch) Union of Employees. The relevant events took place on 5 June, 2009 at the “River Point Apartments” construction site at 43-55 Forbes Street, West End, Brisbane.
4. There is no dispute that on 5 June, 2009 during the incident described below, Mr Pearson:
   1. was acting in his capacity as an official or employee of the Union;
   2. acted on behalf of the Union and within the scope of his apparent, but not actual, authority as an employee of the Union; and
   100. was by his conduct, exercising, or seeking to exercise, a right to enter premises under an occupational health and safety law pursuant to s.756 of the Workplace Relations Act.
5. There is also no dispute that:
   1. the Union is taken for the purposes of the Workplace Relations Act and the Building and Construction Industry Improvement Act 2005 (Cth) to have engaged in the conduct carried out by Mr Pearson; and
   2. the Union (by Mr Pearson) was exercising, or seeking to exercise, a right to enter premises under an occupational health and safety law pursuant to s.756 of the Workplace Relations Act.
6. The parties filed a Statement of Agreed Facts on 1 February, 2011 and the following recitation of facts is drawn from that document.
7. On 5 June, 2009 Mr Pearson was an employee of and organiser for the Union. He was a permit holder within the meaning of s.737 of the Workplace Relations Act. He was also an authorised representative appointed under s.90D of the Workplace Health and Safety Act 1995 (Qld) and, as such, was an authorised representative of the Union. Finally, he was also a building industry participant within the meaning of s.4 of the Building and Construction Industry Improvement Act 2005 (Cth).
8. By dint of the permits and authorities vested in Mr Pearson as set out in the preceding paragraph, he had a right to enter premises under Part 7A of the Workplace Health and Safety Act.
9. On 5 June, 2009 the Union was a transitionally registered organisation of employees under Schedule 10 of the Workplace Relations Act and liable to be sued in that capacity. It was an employee association within the meaning of s.90B of the Workplace Health and Safety Act and a building association and building industry participant within the meaning of s.4 of the Building and Construction Industry Improvement Act.
10. On 5 June, 2009 River Point Pty Ltd owned, inter alia, land at 55 Forbes Street, West End, Brisbane. Stockwell Design and Construction Pty Ltd was a contractor for the construction of Stage 1 of an apartment complex known as River Point Apartments on that land.
11. River Point Pty Ltd also owned land at 43 Forbes Street, West End, Brisbane, which was immediately adjacent to the construction site on 55 Forbes Street. 43 Forbes Street had built upon it a warehouse with an associated office, a hard stand area and a driveway which allowed the only access to the warehouse and hard stand area. 43 Forbes Street was leased to a third party but Stockwell Design and Construction Pty Ltd was able to control and use the hard stand area and driveway for its purposes provided that the third party’s access to the warehouse was maintained. The driveway and the hard stand area was a workplace or a relevant workplace area for the purposes of the Workplace Health and Safety Act 1995 (Qld).
12. A concrete pour for the purposes of the construction work then being undertaken by Stockwell Design and Construction Pty Ltd on 55 Forbes Street was scheduled to commence at 12.00 noon on 5 June, 2009. For that purpose, shortly prior to 1l.30am on that day a concrete pump entered the driveway and set up on the hard stand area on 43 Forbes Street to enable concrete to be pumped onto the construction site. Soon thereafter a cement truck entered the driveway, backed up to the concrete pump and began to discharge a slurry of primer into the concrete pump. Other cement trucks arrived and parked on Forbes Street, waiting for their turn to discharge their loads of concrete into the concrete pump.
13. Earlier that day, Mr Pearson had received a phone call from a member of the Union who was working on the construction site. The member told Mr Pearson that a concrete pour was scheduled to commence at l.00pm and that the concrete pour would continue after dark. The member also said that there were numerous safety issues on the site such as inadequate lighting. He asked Mr Pearson to attend the project.
14. Stockwell Design and Construction Pty Ltd did not contact Mr Pearson to inform him that night work was a potential nor did it identify to Mr Pearson the safety procedures in place for night work. Neither did Mr Pearson contact Stockwell Design and Construction Pty Ltd to make enquiries as to such matters. Instead, at about 12.20pm on 5 June, 2009 Mr Pearson drove a motor vehicle on to the driveway at 43 Forbes Street and parked it immediately behind the cement truck that was discharging the primer slurry into the cement pump. That prevented the cement truck from leaving the driveway. It also prevented the cement trucks that were waiting their turn from entering the driveway and discharging their loads. The presence of the parked car effectively stopped the concrete pour from commencing.
15. A traffic controller engaged by Stockwell Design and Construction Pty Ltd approached Mr Pearson when he was still in the car and an exchange to the following effect took place between them:

Traffic Controller: Good afternoon

Mr Pearson: No response.

Traffic Controller: Where are you after mate?

Mr Pearson: No response.

Traffic Controller: It’s no park here. You will have to move.

Mr Pearson: No response

16. Mr Pearson got out of the car and walked towards the concrete pump operator, with the Traffic Controller in pursuit:

Traffic Controller: Mate, you have to move the car

Mr Pearson: I am not moving the car.

17. Mr Pearson then said to the concrete pump operator: Mate, I believe that this concrete pour is going into night time. Don’t start pumping until I speak to management and make sure procedures are put in place.
18. Mr Pearson asked the Traffic Controller where to find the site manager, Mr Richard Telfer and an exchange to the following effect occurred:

Traffic Controller: OK. Just move the car and go to Richard.

Mr Pearson: I am not going to move the car. I believe my members are at imminent risk from a safety breach.

19. Mr Pearson went to the site office to see Mr Telfer but was told that he was in a meeting. Mr Pearson left the site office and went to the construction site. There he spoke to members of the Union.
20. Thereafter, Mr Pearson and had an exchange with the Stockwell Design and Construction Pty Ltd’s Quality Assurance Manager, Mr Shane Gray to the following effect:

Mr Gray: Kane, you have to move your car, we have to get this pour happening.

Mr Pearson: That’s not the issue. We have a major safety breach happening here.

Mr Gray: Kane, this is a private driveway and the tenants need to get access.

Mr Pearson: Your lunch rooms are here so it’s part of the same job site.

Mr Gray: Kane, you’re on private property, you’re blocking the pour. If you don’t move [your car], we’ll have it towed.

Mr Pearson: My members are going to have to work into the night to finish this pour. It's not fucking good enough.

21. By the time of the exchange with Mr Gray, a number of workers had assembled in the vicinity of the driveway and they observed the conversation.
22. Soon thereafter, Mr Telfer arrived at the scene and Mr Pearson had an exchange to the following effect:

Mr Pearson: [Asked to see documents under the Workplace Health and Safety Act, including work method statements for night time work, fatigue management procedures, safe evacuation procedures and induction documentation]

You are in breach.

[Quoted sections of the Workplace Health and Safety Act]

Mr Telfer: I don't have to give you that paperwork. Move your fucking car.

Mr Pearson: Yes you do, under s.90I. I will report back to the members.

Mr Telfer: You have to move your vehicle, then let’s address those issues, otherwise we are gonna tow your car.

23. Mr Telfer did not provide Mr Pearson with any of the documents he requested. Some members of the Union then spoke with Mr Pearson and repeated what the member had told Mr Pearson earlier that day by telephone.
24. Mr Telfer instructed Mr Gray to move the car by whatever means possible. Mr Gray asked a supervisor engaged by Stockwell Design and Construction Pty Ltd, to bring a forklift over to the car to drag it out of the way. A forklift was reversed up to the car and parked about a metre away. Mr Gray picked up the end of the snatch strap ready to attach it to the car. Mr Pearson stood in front of the tow bar of the car and an exchange to the following effect took place:

Mr Pearson: You’re not fucking putting that on my car.

Mr Gray: Mate, I’ve been told by my boss that the car has to come out and if you’re not going to move it we’ll move it for you.

25. As Mr Gray bent down to attach the snatch strap, Mr Pearson touched Mr Gray slightly on the chest and the following exchange occurred:

Mr Pearson: You’re not putting that on. Tell your boss that if he wants it moved he can come down here.

Mr Gray: He’s on the phone to the Taskforce.

Mr Pearson: This is a safety issue.

Mr Gray: Richard has asked me to get your credentials so that I can get a copy of them.

Mr Pearson: You’re not getting a copy. Last time I gave a copy out it ended up on a notice board. You’re welcome to look at it, but I’m not giving it to you.

26. Mr Pearson was then involved in an exchange to the following effect with the supervisor who organised the forklift:

Supervisor: Move your fucking car or I will move it for you

Mr Pearson: No I’m not fucking moving it. I’m not fucking going anywhere and the car’s staying where it is until I see the safety documents.

Supervisor: Fuck off and just move your car.

27. After being told by yet another employee of Stockwell Design and Construction Pty Ltd to move his car, an exchange to the following effect between Mr Pearson and Mr Telfer occurred:

Mr Pearson: SDC are breaching safety and exposing members to risk.

Mr Telfer: What risk are they at?

Mr Pearson: They are going to be working all night without the correct procedures in place.

Mr Telfer: Apparently we are not, it’s the middle of the day, we are not actually working at night so there is no breach.

Mr Pearson: All I need to see is the correct paperwork.

Mr Telfer: You need to move your car. You can’t park here, so you’re illegally parked and you’re blocking access.

Mr Pearson: You’re not touching or towing the car.

28. Stockwell Design and Construction Pty Ltd’s General Manager Rex Hunter arrived on the scene and he, Mr Telfer and Mr Pearson had a conversation to the following effect:

Mr Hunter [to Mr Telfer]: Back away.

Mr Hunter [to Mr Pearson]: What is going on? What is your problem?

Mr Pearson: They are trying to fucking skull drag my car away.

Mr Hunter: Well move it so we can start the pour and come upstairs to sort this out.

Mr Pearson: I’m not going upstairs because Richard said that he is going to skull drag my car and that will damage it. I’m not stopping the pour but it is obvious you are going to work late and I need to see the relevant information so that I know my members are safe.

Mr Hunter: Why not?

Mr Pearson: You are asking my members to work in an unsafe condition.

Mr Hunter: Please explain.

Mr Pearson: It’s obvious that you’re going to work late. I haven’t seen how you’re going to allow these workers to work in a safe environment.

Mr Hunter: Explain.

Mr Pearson: I haven’t seen or agreed a plan for working late. You haven’t inducted the workers, there is no lighting, fatigue factor for those that have started early and emergency lighting.

Mr Hunter: Kane, please move your vehicle. There is a plan in place. Come upstairs so we can work it through to satisfy your concerns.

Mr Pearson: No, I’m not coming upstairs because Richard said he’s going to skull-drag my car and that will damage it. Your behaviour is an obstruction under the WHS Act.

Mr Hunter: Kane, move your car.

Mr Pearson: No.

29. The exchanges referred to in the preceding paragraphs were observed by a number of workers who had assembled in the vicinity of the driveway. Mr Telfer told the workers who were assembled that they would not be paid because they were talking to Mr Pearson. Mr Pearson then asked the Union members to leave the area and to continue any discussion in a nearby shed.
30. After some other discussions took place, Mr Hunter and Mr Telfer continued their discussion with Mr Pearson to the following effect:

Mr Hunter: It is not dark yet, it is a long time before it would be dark. Your concerns are unreasonable because it is the middle of the day. If we did have to work late [to finish the pour], only two workers would be required to stay back, and arrangements have already been made with the contract company to start some workers later in the morning so they did not have to perform more than 8 rostered hours.

Mr Pearson: What about lighting?

Mr Telfer: We have organised lighting from Coates, there is already task lighting on site, and we have electricians on standby if there are further requirements.

Mr Pearson: What about emergency evacuation?

Mr Hunter: We have a box here and we are more than ready to ask the crane crew to stay back an hour if required.

...

Mr Pearson: I’m not going to move from here or you’ll tow my car.

Mr Telfer: Yes I will. As soon as you move we will remove the car so we can proceed with our work.

31. At approximately 12.50 pm, the police arrived at the site. The police requested Mr Pearson to move his car from the driveway and he did so at approximately 1.00 pm.
32. Thereafter, Mr Pearson, Mr Hunter, Mr Gray and Mr Telfer returned to the site office and further discussions took place between Mr Hunter, Mr Telfer, Mr Gray and Mr Pearson to the effect that:

Mr Hunter: We will start the pour and then discuss your concerns.

Mr Pearson: If you start the pour, my members will be at risk. It will be much easier to get the procedures in place now. Your refusal to show me the documents is an obstruction under the WH&S Act and can attract a $3000 fine. I can’t tell my blokes that they are not now in imminent risk.

Mr Hunter: If it gets dark, we could put a break in.

Mr Pearson: There won’t be any chippies [carpenters] here – who’s gonna put the break in?

Mr Hunter: We’ll get them to stay back. The slab would not be ‘finished’ [trowelled] after dark.

Mr Telfer: No, we’re pouring the slab and it’s getting finished. I won’t be dictated by Kane.

Mr Pearson: I’m just trying to ensure the safety of my membership.

Mr Hunter: Light towers have been ordered.

Mr Pearson: Light towers don’t have emergency back-up power.

Mr Hunter: I have sparkys [electricians] who will install emergency evacuation lighting.

Mr Pearson: When that lighting is installed, the batteries have to be charged for 8 hours and then tested for 1 hour prior to use, which can not occur before nightfall.

Mr Hunter: Can you be more specific about your concerns?

Mr Pearson: Has the crane crew been asked to stay? Everybody needs to be inducted in night work.

Mr Hunter: We will if we need to. We’re going to put the whole slab in and just induct the finishes.

Mr Pearson: What if the slab is still being poured after dark? I want to see how the lighting is going to be adequate, what the emergency evacuation procedures are and who the first aid officer and WHSO at that time of night are.

33. In addition to the above conversations, Mr Telfer said that Mr Pearson was being unreasonable as there were five cement trucks waiting, that the concrete was ready to go, the pumps were ready to go and there was plenty of time to address the safety issues which, in his view, were non-existent. Mr Pearson said that he wanted to see the written procedures and the work methods statement of what was going to happen when darkness fell.
34. Mr Pearson was not given a copy of any documentation purporting to be a copy of the workplace health and safety procedures documentation for the concrete pour.
35. By about 1.15pm to 1.30pm the concrete pour had not commenced, beyond the priming slurry having been put into the concrete pump. Mr Telfer received advice that the concrete in the other concrete trucks had commenced curing and could no longer be used in the concrete pour. Consequently, the concrete pour was cancelled for that day.
36. Mr Pearson left the construction site at 1.40pm without being provided with a copy of the workplace health and safety procedures documentation for the concrete pour.
37. As a consequence of the cancellation of the concrete pour, the concrete in the concrete trucks was lost. Stockwell Design and Construction Pty Ltd incurred disposal fees of $12,327.04 (including GST) for the disposal of the spoiled concrete.

Legal Consequence

38. Section 767(1) of the Workplace Relations Act provides:
    • Division 7—Prohibitions
    • 767 Hindering, obstruction etc. in relation to this Part
    • (1) A permit holder exercising, or seeking to exercise, rights:
      • (a) under section 747, 748 or 760; or
      • (b) under an OHS law in accordance with section 756 or 757;
    • must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.
    • (2) Subsection (1) is a civil remedy provision.
39. In this case, Mr Pearson was seeking to exercise rights referred to in s.767(1)(b) of the Workplace Relations Act.
40. By operation of s.826 of the Workplace Relations Act, the Union is directly liable for a contravention of the Workplace Relations Act committed by an employee who was acting within his or her apparent authority.
41. Mr Pearson and the Union agree that in the circumstances set out above, Mr Pearson and the Union both intentionally hindered or obstructed Stockwell Design and Construction Pty Ltd in the performance of its work and otherwise acted in an improper manner. Consequently, they agree that:
    1. both Mr Pearson and the Union contravened s.767(1) of the Workplace Relations Act; and
    2. a penalty may be imposed on each of them under s.769(1)(a) of the Workplace Relations Act.
42. Generally speaking, the Workplace Relations Act ceased to have effect from 1 July, 2009. However, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) relevantly provides:
    1. that despite being repealed by the Fair Work Act 2009 (Cth), the Workplace Relations Act continues to apply to conduct that occurred prior to 1 July, 2009;
    2. that an application that could have been made or continued by a workplace inspector under the Workplace Relations Act in relation to conduct that occurred prior to 1 July, 2009 may be made or continued after 1 July, 2009 by a Fair Work Inspector.
43. Further, s.73(1) of the Building and Construction Industry Improvement Act relevantly provides that if a provision of the Fair Work (Transitional Provisions and Consequential Amendments) Act authorises a Fair Work Inspector to make an application to, or otherwise institute proceedings in a court, the provision is also taken to authorise an Australian Building and Construction Inspector appointed under s.57 of the Building and Construction Industry Improvement Act to make such an application, or institute such proceedings in any case where the application or proceedings relates to a matter that involves a building industry participant or building work.
44. Mr Lovewell is an Australian Building and Construction Inspector appointed under s.57 of the Building and Construction Industry Improvement Act. He is an eligible person within the meaning of that expression in s.769(1)(a) of the Workplace Relations Act. By reason of s.769(1)(a) of the Workplace Relations Act he is entitled to apply to the Court for orders under that Act in circumstances such as those present in this case.

Pecuniary penalty

45. In Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 at [93] Lander J summarised the purpose of imposing penalties for breaches of the Workplace Relations Act as follows:
    • There are three purposes at least for imposing a penalty: punishment; deterrence; and rehabilitation. The punishment must be proportionate to the offence and in accordance with the prevailing standards of punishment: R v Hunter (1984) 36 SARC 101 at 103. Therefore the circumstances of the offence or contravention are especially important. The penalty must recognise the need for deterrence, both personal and general. In regard to personal deterrence, an assessment must be made of the risk of re­offending. In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 217. In some cases, although hardly in this type of contravention, rehabilitation is an important factor.
46. While the penalty ordered against the Respondents should not be so great as to be oppressive, “...for a penalty to have the desired effect, it must be imposed at a meaningful level”: Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited [2004] FCA 819; Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 at [51].
47. The maximum penalty the Court may impose for each contravention of s.767(1) of the Workplace Relations Act in this case is:
    1. $6,600 in relation to Mr Pearson; and
    2. $33,000 in relation to the Union.
48. In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (No.2) [2009] FCA 865; (2009) 187 IR 400 Greenwood J, at [19], set out the following matters for consideration when the court is called upon to determine whether a pecuniary penalty ought to be imposed and, if so, the quantum of that penalty:
    1. the structure of the statutory regime, including the nature of the civil penalty provisions and the statutory context and purpose of the legislation;
    2. the elements of the contravening conduct;
    100. the circumstances in which the conduct took place;
    4. whether one or more contraventions formed part of one course of conduct or whether they are to be treated as separate events exhibiting discrete features;
    5. the place where the conduct occurred, and the nature of the facility that the official sought to enter;
    6. the “counter-factual” (i.e. the steps that might reasonably otherwise have been adopted and whether those steps would have avoided, or would have been likely to avoid, the contravening conduct);
    7. the position and experience of the individual officials involved in the contravention;
    8. the consequences of the conduct;
    9. the need for either general or specific deterrence; and
    10. whether a respondent has previously engaged in a contravention of:
        1. the civil penalty provisions the subject of the proceedings; and/or
        2. a provision which reflects either the statutory purpose of the provisions in issue or other provisions of the Workplace Relations Act which reflect the essential character of the provisions contravened.
49. The principal object of the Workplace Relations Act, as set out in s.3, is to provide a framework for co-operative workplace relations which promotes the economic prosperity and welfare of the people of Australia by, amongst other things, ensuring freedom of association.
50. The right of entry provisions, which incorporate s.767(1) of the Workplace Relations Act, are contained in Part 15 of the Workplace Relations Act and contain objects in addition to that set out in s.3 of the Act. The objects of Part 15 of the Workplace Relations Act relevantly provide:
    • In addition to the object set out in section 3, this part has the following objects:
    • (a) to establish a framework that balances:
    • (i) the rights of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches of industrial laws, industrial instruments and OHS laws;
      • (ii) the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment.
    • (b) to ensure that permits to enter premises ... are held only be persons who understand their rights and obligations under this Part and who are fit and proper persons to exercise those rights.
51. The right of entry provisions are important because, amongst other things, they give a means by which occupational health and safety laws can be policed. In CFMEU v Merhis Constructions Pty Ltd [2010] FMCA 751 at [12] Smith FM pointed out:
    • The benefits to safety in the building industry from all of its participants having accurate knowledge of, and giving full effect to, union rights of immediate OH&S entry can never be dismissed lightly. Marshal J commenced his judgment in Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 by explaining how "safety in the workplace is a matter of paramount importance, especially in the construction industry".
52. Mr Lovewell submits that the conduct of Mr Pearson (and by Mr Pearson’s actions, that of the Union), on 5 June, 2009 ran contrary to the relevant objects of the Workplace Relations Act and the imposition of a pecuniary penalty is justified. I accept that submission.
53. Moreover, in my view, Mr Pearson clearly misused the powers of entry granted to him by the Workplace Relations Act. The “statutory construct” (John Holland at [29]) which provided his right to enter premises where otherwise no common law property rights existed, did not extend to interference with the work that was going on there.
54. In submissions on behalf of Mr Pearson and the Union, it is pointed out that Mr Pearson was on site at the invitation of a Union member to investigate safety concerns raised by that member in relation to the concrete pour. That might well be so, but I was taken to nothing which authorised the action that Mr Pearson took upon his arrival, the effect of which was to completely halt the commencement of the concrete pour.
55. Mr Pearson and the Union further submit:
    • 17. Mr Pearson had a responsibility as the authorised officer to ensure that the safety concerns of his members were addressed promptly.
    • 18. The timing of the events is important. Mr Pearson had been informed that the concrete pour was scheduled to commence at 1pm. As it was mid-winter, Mr Pearson would have been aware that there was only 4 or 5 hours of daylight available if the concrete pour commenced at 1pm. He arrived at or about 12.20pm which would have given him some 40 minutes to raise any safety concerns with the site operator, SOC, prior to the concrete pour commencing at the scheduled time.
    • 19. Any safety concerns that arose once the concrete pour had commenced would be very difficult, if not impossible, to address thus potentially endangering workers on the SOC site. On arriving at the SOC site after the concrete pour had commenced, Mr Pearson was thus thrust into the difficult position where he needed information quickly so that the safety of his members was assured. As the SOAF demonstrates, tempers quickly escalated on both sides and culminated in a threat by the SOC personnel to tow Mr Pearson's car. The situation clearly escalated out of control yet it is important to acknowledge the overriding safety imperative, which initially motivated Mr Pearson's actions.
56. Mr Pearson’s submission is misconceived. It proceeds on the basis that he had the power to interrupt the work as he did until his concerns were satisfied. As the admissions in this case now make plain, he did not. It is that interference with the work going on on-site that is the subject of the complaint against him and the Union, not the fact that he sought to investigate what might have been a potentially dangerous situation for his workers. The latter is justified, the former is not.
57. I accept the submission that by his conduct on 5 June, 2009 Mr Pearson demonstrated flagrant disregard for, and a lack of appreciation of, the rights and obligations imposed on him under the Workplace Relations Act.
58. Mr Pearson by driving his car onto the construction site:
    1. hindered and obstructed Stockwell Design and Construction Pty Ltd, and its employees and contractors from carrying out their business and performing work on the construction site (i.e. the concrete pour);
    2. prevented the concrete truck that was on site from leaving the site and/or other concrete trucks from accessing the concrete pump to discharge their loads; and
    100. refused to move his car despite several requests from employees and contractors of Stockwell Design and Construction Pty Ltd until such time as the police intervened.
59. I am satisfied by the agreed facts that at the time of entering onto the construction site on 5 June, 2009 and at all times he remained on the site thereafter on that day, Mr Pearson well knew that his actions prevented the relevant work from continuing. Indeed, his written submissions on penalty acknowledge that that was his intention (at paragraphs 18 and 19) as, of course, does his admission of the contravention alleged against him.
60. The offending conduct took place on the construction site of a residential development within close proximity to the Brisbane CBD, in circumstances where there was limited access to the site for the purposes of undertaking the concrete pour. There was no dispute that the concrete pour was a complex undertaking which required significant organisation to complete. Moreover, it was just one of a series of steps that constituted the building process. Stopping the concrete pour was highly disruptive and had the potential for negative impacts upon not only the completion of that section of the work, but also on the construction schedule for the project generally.
61. Mr Lovewell submits that the direct consequence of the conduct admitted by Mr Pearson and the Union was that the concrete pour scheduled to be completed on 5 June, 2009 was cancelled and rescheduled for a later date. That had implications not only in terms of the schedule for the project, but also had financial implications for Stockwell Design and Construction Pty Ltd in terms of additional expenses (including the costs of disposing of the spoiled concrete which totalled $12,327.04). I accept that submission.
62. Had Mr Pearson acted reasonably and accepted the invitation of Stockwell Design and Construction Pty Ltd employees to move his car and attend a meeting with respect to his concerns, the contravening conduct would have been avoided, or at least significantly minimised. It was a simple step to take.
63. At the relevant time, Mr Pearson was employed by the Union as an Industrial Officer. He ought to have known the basis upon which he was entitled to enter the land upon which the work was being carried out and how to go about his union functions without breaching the very laws that provided him with his powers of entry. That he did not increases the seriousness of the breach and warrants the imposition of a higher penalty.
64. There are no previous breaches recorded against Mr Pearson or the Union.
65. The penalties imposed in this matter must reflect the need for both general and specific deterrence. The relevant principles were stated in CPSU v Telstra Corporation Limited [2001] FCA 1364; (2001) 108 IR 228 at [9]:
    • ... even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct: R v Thompson (1975) 11 SASR 217. It is also important to remember that proscribed conduct is often engaged in because it is profitable, or will enhance the profitability of the company. To deter conduct engaged in with that purpose, any penalty imposed must have the potential to render the conduct unprofitable. The achievement of that object is subject to the limitations placed upon the court's power by the legislation in question ...
66. I accept Mr Lovewell’s submission that there is a need for general deterrence in circumstances where a statutory right of entry overrides common law rights with respect to occupation and control of property, and an individual or body corporate engages in conduct which is at odds with the objects of the statute that creates the right. In order to deter those who may be inclined to engage in conduct similar to that admitted by Mr Pearson and the Union, the penalty imposed needs to be meaningful.
67. In Darlaston v Parker [2010] FCA 1382, in the context of s.767(1) of the Workplace Relations Act, Flick J observed:
    • [34] Hindering or obstructing workers on site is a serious matter. And, in imposing a penalty, an objective or purpose to be achieved is the need to fix a penalty which acts as a real deterrent: Standen v Feehan (No 2) at [16]. A contravention of s 285E(1) of the Workplace Relations Act was there made out. Section 285E provided that a person who was exercising powers under ss 285B or 285C "must not intentionally hinder or obstruct any employer or employee". In imposing a penalty of $1,300 Lander J observed in part as follows:
      • [16] I do not think in the case of a contravention of s 285E rehabilitation plays any real part. I think punishment plays some part in the purpose for the imposition of a penalty, but I think it plays a lesser part than aspects of deterrence. In my opinion, the principal reason for the imposition of a penalty in relation to a contravention of s 285E of the Act is deterrence. The purpose of the civil penalty is to deter persons, who have been given a right to enter premises by virtue of ss 285B and 285C, from intentionally hindering or obstructing any other employer or employee. In speaking of deterrence, I am speaking of both general and personal deterrence. The purpose of the penalty is to deter the particular person from further contraventions of the section and to deter other like minded persons who might otherwise commit a contravention of s 285E.
    • Any question as to imposing any lesser penalty than $3,000 in the present proceeding is dispelled when attention is given to the contemptuous manner in which Mr Parker treated the officers of Lend Lease. There was a serious departure on the part of Mr Parker from the standards of behaviour to be expected of those who are clothed with statutory power to enter premises. Even in an industry which has been described as "robust", the conduct of Mr Parker was blatantly unacceptable. There has been no acknowledgment on the part of Mr Parker, given the findings made against him, of the unacceptability of his conduct. The absence of any apology or acceptance of excess of power being exercised before or after findings were made, only reinforces the appropriateness of imposing a penalty of $3,000 which will act as a deterrent to Mr Parker in particular and, more generally, to those who may otherwise engage in like conduct.
68. So too in this case, specific and general deterrence are significant factors to take into account in determining an appropriate level of penalty. I accept Mr Lovewell’s submission that the penalties imposed in this matter should incorporate an element of specific deterrence, given the position of Mr Pearson and the Union and the role that they play in workplace relations in the building and construction industry in Queensland. Further, the intentional aspect of Mr Pearson’s conduct is a matter that has a strong bearing on the assessment of the penalty to be imposed.
69. Apart from the admissions that have been made by Mr Pearson and the Union, there has been no other evidence of contrition or corrective action by Mr Pearson or the Union – no evidence of an apology or other demonstration of contrition made to a representative of Stockwell Design and Construction Pty Ltd for the interference with its lawful undertaking and the resulting disruption to the work schedule at the construction site. Nor is there evidence of any corrective action taken by Mr Pearson or the Union to ensure that such contraventions do not occur in the future.
70. Consistent with the approach adopted in Gregor v Setka (No. 2) [2010] FMCA 973 at [35], the Applicant submits that a lack of contrition, corrective action and early cooperation with the enforcement authorities does not call for the imposition of greater penalties, but for Mr Pearson and the Union not to obtain any benefit of the type they would have had these matters been present (eg: a discount in the penalties imposed). I accept that submission.

Conclusion

71. I was taken to a number of authorities to demonstrate the range of appropriate penalties that might be applied in this case:
    1. Standen v Feehan (above) - a union official was found to have intentionally hindered and obstructed individuals at a residential development site (including the Project Manager and those contracted to provide general concrete services) by, amongst other things, parking his vehicle in a location designed to prevent the concrete services from being provided and/or other individuals from carrying out their duties on the site. The Court agreed with the penalty range proposed by the parties (60-80% of the maximum penalty) and imposed a penalty of $1300 accordingly (65% of the maximum penalty).
    2. Jenkinson v Carter (2010) 197 IR 415 - a union organiser gave 24 hours notice of his intention to enter the relevant premises, but entered the premises before that 24 hour notice period had expired. When asked to leave the premises he refused to do so, becoming abusive and violent. The Court imposed a penalty at the highest end of the range in respect of the breach of section 767(1) of the WR Act, being $5,500.
    100. Darlaston (above) - two employees of a union were found to have breached s.767(1) of the Workplace Relations Act in respect of separate incidents on the same building site: one respondent having induced workers on the site to stop work and leave the site and the other in driving a car into a cyclone fencing gate, endangering an employee of an onsite contractor. The Court imposed a penalty of $3,000 and $4,500 respectively on the respondents in respect of the single breaches of s.767(1)
72. All parties submit that an appropriate penalty for Mr Pearson is one which falls in the mid to high range, i.e., from about $3,300 onwards. The parties suggest that the agreed penalty of $4,500 is appropriate. I agree also. It is within the relevant range and reflects the manner in which Mr Pearson treated the employees of Stockwell Design and Construction Pty Ltd. To borrow from Flick J in Darlaston, the behaviour on the part of Mr Pearson was serious departure from the standards of behaviour to be expected of those who are clothed with statutory power to enter premises. Mr Pearson’s conduct was, and is, unacceptable. The proposed penalty also recognises the lack of remorse and contrition on the part of Mr Pearson.
73. The penalty proposed by the parties in this case in respect of the Union is in the mid range of penalties that might be applied. The parties suggest that $16,500 is appropriate. Again I agree. Such a penalty reflects the serious nature of the contravention and recognises the Union’s part in that contravention. It also recognises the lack of remorse and contrition on the part of the Union.
74. Having regard to the matters I have referred to above, I make the orders set out at the commencement of these reasons.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 25 February 2011