Wotherspoon v Construction Forestry Mining & Energy Union [2010] FCA 111 (23 February 2010)

Last Updated: 25 February 2010

FEDERAL COURT OF AUSTRALIA

Wotherspoon v Construction Forestry Mining & Energy Union [2010] FCA 111

Citation:		Wotherspoon v Construction Forestry Mining & Energy Union [2010] FCA 111
Parties:		JOHN WOTHERSPOON v CONSTRUCTION FORESTRY MINING & ENERGY UNION, COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA, ELIAS SPERNOVASILIS, TROY DONALD GRAY , DEREK CHRISTOPHER, ADRIAN MCLOUGHIN and MATTHEW HUDSON
File number:		VID 936 of 2008
Judge:		JESSUP J
Date of judgment:		23 February 2010
Legislation:		Building and Construction Industry Improvement Act 2005 (Cth) ss 5(1)(a), 36(1), 38, 48, 57 Fair Work (Registered Organisations) Act 2009 (Cth)
Cases cited:		Attorney-General v Tichy (1982) 30 SASR 84 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Construction, Forestry, Mining and Energy Union v Williams [2009] FCA 548 Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171 Cruse v CFMEU (2009) 182 IR 60 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Date of hearing:	25 September 2009
Date of last submissions:	22 February 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	35
Counsel for the Applicant:	Mr N Green QC and Mr S Tracey
Solicitor for the Applicant:	Office of the Australian Building and Construction Commission
Counsel for the First, Third, Fifth, Sixth and Seventh Respondents:	Mr A Bandt
Solicitor for the First, Third, Fifth, Sixth and Seventh Respondents:	Construction Forestry Mining & Energy Union
Counsel for the Second and Fourth Respondents:	Mr K Farouque
Solicitor for the Second and Fourth Respondents:	Maurice Blackburn Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 936 of 2008

BETWEEN:	JOHN WOTHERSPOON Applicant
AND:	CONSTRUCTION FORESTRY MINING & ENERGY UNION First Respondent COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA Second Respondent ELIAS SPERNOVASILIS Third Respondent TROY DONALD GRAY Fourth Respondent DEREK CHRISTOPHER Fifth Respondent ADRIAN MCLOUGHIN Sixth Respondent MATTHEW HUDSON Seventh Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	23 FEBRUARY 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The proceeding be listed for directions at 9:30 am on 1 March 2010.
   

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
GENERAL DIVISION	VID 936 of 2008

BETWEEN:	JOHN WOTHERSPOON Applicant
AND:	CONSTRUCTION FORESTRY MINING & ENERGY UNION First Respondent COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA Second Respondent ELIAS SPERNOVASILIS Third Respondent TROY DONALD GRAY Fourth Respondent DEREK CHRISTOPHER Fifth Respondent ADRIAN MCLOUGHIN Sixth Respondent MATTHEW HUDSON Seventh Respondent

JUDGE:	JESSUP J
DATE:	23 FEBRUARY 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, an Australian Building and Construction Inspector appointed pursuant to s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”), applies for declarations and the imposition of penalties for what are alleged to be contraventions of s 38 of that Act. The first respondent, Construction, Forestry, Mining and Energy Union (“the CFMEU”), and the second respondent, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”), are organisations of employees registered pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). The third respondent, Elias Spernovasilis, is an officer of the CFMEU, and the fifth, sixth and seventh respondents, Derek Christopher, Adrian McLoughlin and Matt Hudson respectively, are organisers of the CFMEU. The fourth respondent, Troy Donald Gray, is an organiser of the CEPU.
2. The conduct of the respondents out of which the proceeding arises related to the introduction of a swipe card security system called “Blue Glue” by Bovis Lend Lease Pty Ltd (“BLL”), a building construction contractor. At relevant times, BLL was engaged as principal contractor on three adjacent projects within the Docklands district of Melbourne (“the Docklands projects”) and upon a project at the Royal Children’s Hospital in Parkville (“the hospital project”). The Docklands projects were within a common perimeter security fence. Both at the Docklands projects and at the hospital project, BLL introduced the Blue Glue system. That was, however, resisted by the CFMEU and the CEPU, and it seems that they and their members took various steps in prosecution of their campaign to ensure that Blue Glue should not be successfully introduced. This proceeding concerns action which was taken in that regard in May and August of 2008.
3. On 12 November 2008, the proceeding was commenced by Application and Statement of Claim. No Defence was filed. Then on 18 June 2009, the applicant filed a “Statement of Agreed Facts” executed by the parties. With some relatively minor amendments, that statement appears to follow closely the applicant’s allegations in his Statement of Claim. The view appears to have been taken that, upon the filing of the Statement of Agreed Facts, the only thing remaining was for the court to determine what orders should be made in disposition of the proceeding.
4. The proceeding was listed for hearing on 25 September 2009. The applicant then tendered an agreement made on 22 September 2008 (ie about six weeks before the commencement of the proceeding) between the Australian Building and Construction Commission (“the ABCC”), the CFMEU and the CEPU. It related to all conduct by those organisations, their organisers, employees and members, between 23 May and 1 September 2008 in relation to the Blue Glue system at the Docklands projects and the hospital project. It was said that the ABCC would issue an application in the Federal Court for the imposition of penalties for contravention of s 38 of the BCII Act in relation to events occurring within that period. The agreement then provided as follows:
   4. The unions and those of their officers or organisers named in the Application will admit that they contravened section 38 of the BCII Act 2005 on

(i) 23 May 2008;
(ii) 5 August 2008;
(iii) 14 August 2008; and
(iv) 28 August 2008;
And will agree to the imposition of a total penalty of $110,000.00, made up as follows:
(v) 23 May 2008 − $20,000;
(vi) 5 August 2008 − 20,000;
(vii) 14 August 2008 − $20,000; and
(viii) 28 August 2008 − $50,000.
And the unions and the officers and organisers so named will submit to the court that the appropriate penalty for the admitted contraventions should be a total of $110,000.00.

It was provided that the parties would make a joint application to the court for the imposition of penalties in accordance with the figures referred to above. The present proceeding, and the submissions made on 25 September 2009, were the result of that agreement.

5. Counsel for the applicant submitted that I should impose penalties upon the respondents, structured in a way which would yield the aggregate sums referred to in subparas (v) − (viii) in the extract from the agreement of 22 September 2008 which I have set out above. That structure took account, to an extent, of the individuals by whom conduct now admitted to have been in breach of s 38 of the BCII Act took place on particular dates and at one or other of the project sites. Since both the organisations and, at least for the most part, the individual respondents, admitted to contravening conduct on more than one occasion, the penalties agreed by the parties were said to have taken account of the totality principle. I was not informed of the penalty which would, in any case (or in sum), have been considered appropriate before application of that principle.
6. The applicant submitted that penalties amounting to $110,000 in total should be imposed upon the respondents in accordance with the following table:
   

Date of Incident	Name of Respondent	Proposed Penalty
23 May 2008	Elias Spernovasilis	$2,000
	Troy Gray	$2,000
	CFMEU	$8,000
	CEPU	$8,000
		$20,000
5 August 2008	CFMEU	$10,000
	CEPU	$10,000
		$20,000
14 August 2008	Adrian McLoughlin	$6,000
	Derek Christopher	$2,000
	CFMEU	$12,000
		$20,000
28 August 2008	Troy Gray	$2,000
	Elias Spernovasilis	$2,000
	Adrian McLoughlin	$2,000
	Derek Christopher	$2,000
	Matt Hudson	$2,000
	CFMEU	$20,000
	CEPU	$20,000
		$50,000

7. In the event that I should, acting consistently with the authorities to which I shall refer, reject the parties’ agreement on penalty, the applicant submitted that I should proceed to impose such penalties as I considered appropriate in accordance with the facts which had been agreed. The respondents took a similar position, subject only to the qualification that the penalties imposed on the CEPU and Mr Gray did not exceed $42,000 in total and the penalties imposed on the CFMEU and the other individual respondents did not exceed $68,000 in total. To the extent that the court proposed to impose penalties which did exceed either such sum, the court should not regard the respondents as agreeing to anything, and the proceeding would have to be re-listed for the applicant to prove his case.
8. The authorities make it clear that, notwithstanding the agreement of the parties to a particular proceeding, the determination of the correct penalty is a matter for the court. The court is not obliged to accept the parties’ agreement; nor is it entitled to take the easy course of doing so without deliberation. However, the authorities also show that, where the parties have agreed on a penalty, the court should give weight to that agreement, and should generally give effect to it so long as the agreed penalty falls within the appropriate range, that is, so long as it may be described as neither manifestly inadequate nor manifestly excessive. See NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285, 291 and 298; Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51]; Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543, 553 [57] and 564 565 [129]. On any view, it will be necessary for the court in a case such as the present to acquaint itself with the facts of, and surrounding, the admitted contraventions and to derive from those facts an understanding of the extent and nature of the conduct of the respondents, and of the gravity of that conduct generally. Without putting itself in this position the court will not, in my assessment, be able to carry out the task committed to it in accordance with the authorities to which I have referred.
9. I turn then to consider the circumstances out of which the various admitted contraventions of s 38 of the BCII Act arose. What I set out below is based entirely on the parties’ agreed statement and in no sense constitutes findings by the court. In the light of the conclusion to which I shall eventually come in these reasons, it is important that I make it clear that the question whether any of the facts and matters set out in the agreed statement actually occurred is, save in a forensic setting in which the parties are in agreement, one upon which I have an open mind.
10. On 23 May 2008 at the Docklands projects, the CFMEU and the CEPU organised a barbeque for workers on those projects which was held during the normal meal break. At the barbeque, officials of those organisations, including Messrs Spernovasilis and Gray, said words to the effect of: “BLL won’t negotiate with the unions about Blue Glue, BLL is trying to lock you in the job”; and: “The issue is a national campaign against BLL and their implementation of Blue Glue”. Those officials advised the workers to refuse to co-operate with BLL when it requested photographs for security passes, as that was said to be an “extra claim” and therefore in breach of the relevant workplace agreements. The officials also said that the implementation of Blue Glue, and the associated barbed wire fences, caged walkways and full body length steel grill revolving entry doors were potential safety hazards in the event of an emergency.
11. At the conclusion of the barbeque, the workers voted to withdraw their labour for the rest of the day in protest about Blue Glue. About 90% of them did not return to work that day at the Docklands projects. As to the involvement of the respondents in the circumstances which led to the employees failing to return to work after the barbeque, the parties agreed as follows:

The aforesaid conduct was conduct in which the CFMEU, the CEPU, Spernovasilis, Gray and Christopher, or each of them, was involved, in that they, or each of them, have been in some way, by act or omission, directly or indirectly, knowingly concerned in or party to the conduct.

This kind of formulary − which mimics the wording of s 48(2)(c) of the BCII Act − may have its place in a pleading, but it is quite uninformative in a statement of agreed facts. Nothing is revealed about what actually happened at the barbeque, in the sense of who said what, and in what context. The cascading sequence of alternative propositions is not inconsistent with significant differences in culpability as between the individual respondents. Neither is there any explanation for the exclusion of Mr Christopher − who by his agreement admits some involvement in the conduct − from the schedule of proposed penalties set out above.

12. Counsel for the applicant urged me to infer that the respondents had procured the vote of workers at the barbeque for a withdrawal of labour. However, in a case proceeding on an agreed statement, I would be reluctant to overreach what had actually been agreed, at least in respects which were central to the gravity of the contraventions in question, or to the extent or nature of the participation of particular respondents. To the extent that the agreed facts deal with anything said by the respondents who were in attendance, they tend to suggest that those respondents encouraged a campaign of non-co-operation and of recourse to the provisions of workplace agreements and safety regulations. There is no agreed fact which gives any of those respondents a role in proposing the motion which led to the vote for the withdrawal of labour. And if the individual respondents did not propose the motion, or play some role in its successful passage at the meeting, the involvement of the unions may be problematic to a degree. Thus, while I accept that the CFMEU, the CEPU and Messrs Spernovasilis and Gray have agreed that there was industrial action in breach of s 38 on 23 May 2008, and that they were involved by being knowingly concerned in or party to the industrial action, the agreed statement gives me nothing by reference to which to assess the extent, nature or gravity of their respective contributions.
13. On 5 August 2008 at the hospital project, about 40 officials, organisers or agents of the CFMEU and the CEPU, including Messrs Spernovasilis and Gray, invited workers, arriving for work, to gather at the Flemington Road gate to the project. The officials then handed out flyers to the workers. Mr Stephen Broadhead, BLL’s Industrial Relations Manager for Victoria, was present, and Messrs Spernovasilis and Gray, and others, said to him that they wanted the Blue Glue system turned off at the project, and the gates to the project to be opened. Mr Broadhead and Mr Craig Peterson, the General Foreman on the project, said that the project was open for all, and that the workers could attend for work without having to use a swipe card. However, many of the workers did not attend for work at the project that day.
14. It was agreed that the failure of the workers to attend for work was industrial action for the purposes of s 38 of the BCII Act. It was then agreed between the parties as follows:

The aforesaid conduct was conduct in which the CFMEU, the CEPU, Spernovasilis and Gray, or each of them, was involved, in that they, or each of them, have been in some way, by act or omission, directly or indirectly, knowingly concerned in or party to the conduct.

Although it is not stated in the agreed facts, at first I thought that I would be asked to infer that Messrs Spernovasilis and Gray, and the other union representatives present, had directed or encouraged the workers not to attend for work. However, that was not the way this particular allegation was said to arise, in the submission of the applicant. It was submitted, rather, that, by requesting Messrs Broadhead and Peterson to render inactive the Blue Glue system on 5 August, the relevant respondents had brought about a situation in which the workers could absent themselves from work without the risk of detection. This was, I must say with respect to those responsible, an odd submission, as it was based upon the assumption that BLL and its sub-contractors on the hospital project would have no way, other than the Blue Glue system, of knowing who was at work and who was not.

15. However these considerations may be, I must deal with the case as it has been presented. It seems that the industrial action was constituted by the failure of the workers to attend for work, and that the involvement of the relevant respondents was constituted by the request to have the Blue Glue system turned off. Those respondents have admitted that that was sufficient to constitute involvement in the contravention of s 38 of the kind contemplated by s 48(2)(c) of the BCII Act. I must say that this strikes me as an involvement (and therefore a contravention) of almost vanishingly inconsequential gravity. It was not suggested that any pressure was brought to bear with respect to the decision made by Messrs Broadhead and Peterson. It was not suggested that the workers were influenced in their decision not to attend for work by the respondents. All that happened was that the respondents asked for the Blue Glue system to be turned off, with whatever consequences that might have had, and that request was acceded to.
16. On 14 August 2008 at one of the Docklands projects, a concrete pour was scheduled to take place. A truck equipped with a concrete pump arrived at a gate to the project. Messrs Christopher and McLoughlin directed or requested about 10 - 20 men to stand in front of the truck, with their arms linked together. Mr McLoughlin said to the men: “Link arms, boys. Stand and be proud”. When a BLL Construction Manager asked Mr McLoughlin why the men were standing in front of the truck, he said: “They’re stopping the truck from entering the site.” As a result of this conduct, the truck did not enter the site, and drove away.
17. Counsel for the applicant submitted that the arrival and intended utilisation of the concrete pump was an activity which fell within the scope of para (a) of subs (1) of s 5 of the BCII Act. He submitted that the action of standing in front of the truck, with arms linked so that the truck could not proceed, amounted to a restriction on the performance of that work within the meaning of par (b) of s 36(1) of the BCII Act. Counsel for the respondents did not contest these submissions. In an environment in which the parties have agreed that contraventions there were, I see no reason why they should not be accepted. Self evidently Messrs Christopher and McLoughlin, and therefore (because of their position as organisers) the CFMEU and the CEPU, were involved in those contraventions within the meaning of s 48(2) of the BCII Act.
18. On the same day at the same project, a slurry or concrete truck arrived at a gate to the project, and again the same men stood in front of that truck with their arms linked together. Messrs Christopher and McLoughlin directed or requested that they do so. Mr McLoughlin said: “C’mon, boys. Link arms.” Again, as a result of the action of these men, the truck was unable to enter the site. It attempted to do so at another entrance, but that attempt was blocked by similar means. These events are relevantly indistinguishable from the ones with which I have most recently dealt above. They constitute a further contravention of s 38 of the BCII Act in which Messrs Christopher and McLoughlin, and the CFMEU and the CEPU, were involved.
19. On the same day at the same project, there were approximately 11 concreters on site for the purpose of working on the scheduled concrete pour. Mr McLoughlin directed or requested them not to undertake the pour. He told them that they were entitled to attend proceedings in the Australian Industrial Relations Commission which were, it seems, taking place. The concreters left the site, and the scheduled concrete pour was abandoned. It is admitted that the action of the concreters constituted industrial action for the purposes of s 38 of the BCII Act, and it is clear that Mr McLoughlin, and the CFMEU as his employer, were involved in it.
20. At about 6:10 am on Thursday 28 August 2008 at the Docklands projects, Mr Robert McGregor, General Foreman for BLL, told Messrs Spernovasilis, Christopher and McLoughlin and three other organisers or agents of the CFMEU or the CEPU, and about 250 - 300 employees of BLL or its subcontractors, that the site was open. Mr McGregor said: “Please go through the gates to work. The guards will swipe you in and out”. Mr Geoffrey Scott, another General Foreman for BLL at the Docklands projects, said something to the same effect. Some of the employees, however, said “it’s a lockout” and did not enter the site. Messrs Spernovasilis, Christopher, McLoughlin and Gray, Mr Noel Washington (of the CFMEU) and Mr John Setka (of the CFMEU), or other organisers or agents of the CFMEU and the CEPU, told the employees that BLL was locking them out.
21. At about 6:35 am, in the presence of the employees who had, to that point, declined to enter the site, Messrs Gray, McLoughlin, Spernovasilis, Christopher, Washington and Setka said to Messrs McGregor and Scott: “We had an agreement with Bovis that the gates would stay in free-spin and talks will continue. You have changed that. What are you doing?” Mr McGregor said that the site was open, and that the guards would swipe all the workers on to the site, and off again. Mr Spernovasilis said: “So you are denying access to the workers”. Mr McGregor said: “No, the site is open. Our direction is to enter the site and you will be given access.” Messrs Gray, McLoughlin, Spernovasilis, Christopher, Washington and Setka said to the employees there assembled: “There you go. You heard it, they have locked us out.” They urged the employees to chant: “What do we want? We want to work.”
22. At about 7:05 am at a car park nearby the site of the Docklands projects, the organisers and representatives of the CFMEU and the CEPU to whom I have referred held a meeting with the employees who had declined to enter the site. Either Mr Spernovasilis or Mr Gray said to the employees, through a megaphone: “Bovis have locked us out and we are not going to cop it.” An unknown organiser of the CFMEU or the CEPU said, through a megaphone: “The motion is to go home until Monday morning, then we’ll see what state the gates are in and work out our next step then”. He added: “All those in favour?” Most, if not all, of the employees at the meeting raised their hands in favour of this motion. The organisers and representatives of the CFMEU and the CEPU, and the employees who had been at the meeting, then left the vicinity of the Docklands Projects and marched to BLL’s head office at 825 Bourke Street, Melbourne.
23. Save for about 18 employees, the employees engaged to work at the Docklands projects did not return to work on those projects that day. The failure of those employees to attend for work was building industrial action within para (d) of the definition of that term in s 36(1) of the BCII Act. As agreed, Messrs Spernovasilis, Gray, Christopher and McLoughlin and, because of their position as organisers, the CFMEU and the CEPU, were involved in the contravention of s 38 of the BCII Act constituted by that building industrial action. However, it seems that none of these men was the one who proposed the withdrawal of labour until Monday. From the facts as agreed, the impression one gets of their actual involvement in the industrial action is quite opaque. I suppose I am expected to infer that they provided support for the motion as passed at the meeting, but, as I have said, I am reluctant to go beyond the agreed facts in a case in which no evidence has been led.
24. At about 6:30 am on 28 August 2008, several organisers or representatives of the CFMEU and the CEPU, including Mr Hudson, entered the site of the hospital project. Save for eight employees and apprentices engaged directly by BLL, all of the (approximately 200) employees engaged to work on the site that day left the site and did not return. It was admitted that the CFMEU and the CEPU, by their organisers, including (in the case of the CFMEU), Mr Hudson, requested or directed the employees to leave the site. This was done in protest over the decision by BLL to introduce the Blue Glue system.
25. The failure of the employees to work at the hospital project on 28 August 2008 was building industrial action within para (d) of the definition of that term in s 36(1) of the BCII Act. By requesting or directing the employees to take that action, Mr Hudson was involved in the contraventions of s 38 of the BCII Act constituted by that building industrial action. Because of his position as an organiser, the CFMEU was likewise involved. Both the CFMEU and the CEPU had other organisers present who also requested or directed the employees to leave the site, as a result of which the CEPU also was involved in the contraventions of s 38 constituted by the employees’ failure to work on the hospital project site that day.
26. For each of the contraventions admitted in the present case, the maximum penalty is $110,000 for a body corporate and $22,000 for an individual.
27. The touchstone by reference to which to approach the question whether the penalties agreed in the present case are either manifestly inadequate or manifestly excessive is that the penalties should pay “appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.”: Australian Ophthalmic Supplies Pty Ltd v McAlary Smith [2008] FCAFC 8; (2008) 165 FCR 560, 580 [91]: Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417, 428. Although it is not the function of the court to substitute its own preferred penalties for those agreed by the parties, it is necessary for the court to come at least to a general view about the seriousness of the conduct involved in the admitted contraventions of s 38 of the BCII Act. Before doing so, I should say something about the parties’ agreement of 22 September 2008, and about the schedule of proposed penalties upon which the applicant relied.
28. In their agreement, the parties dealt with the contraventions by reference to the four separate days on which they occurred. The parties did not agree, and I was not informed that they approached the matter on the basis, that everything done by each of the relevant respondents on each of those days should be regarded as a single course of conduct. However, that there was (in the case of each of the respondents concerned) a single course of conduct on each of 23 May 2008 and 5 August 2008 seems self-evident, and I shall approach the conduct on those days in that context. The conduct on 14 August 2008 was not so self-evidently part of a single course, but I note that the parties, in their agreed statement of facts, described all that conduct as “building industrial action” without discriminating between particular instances. In the circumstances, I think I should treat the events of 14 August in effect as a single delict by each of the respondents concerned, being his or its involvement in a restriction on the performance of building work within the terms of para (b) of the definition in s 36(1) of the BCII Act.
29. The parties took the same approach to the conduct of the CFMEU and the CEPU on 28 August 2008, in that they agreed that “the aforesaid conduct on 28 August 2008” (ie, presumably, everything that the respondents had done on both projects that day) was building industrial action within the meaning of s 36 of the BCII Act. However, here the conduct occurred on separate projects and involved different individual actors. The parties did not agree that the action was centrally devised or co-ordinated by the unions: all I know is that it occurred on the same day and that the actors were organisers of the unions. The modus operandi of the organisers was not the same at both places. At the Docklands projects, there was what appeared to be, if I may so observe, a certain amount of play-acting about a lockout, followed by the putting of a motion at a meeting to withdraw labour. At the hospital project, there was nothing more than a request or direction, by Mr Hudson and others, to the employees to leave the site.
30. Because of the uncertainty about the nature of the conduct on 28 August 2008 to which I have just referred, on 12 January 2010 I had my Associate correspond with the parties in the following terms:

Since his Honour reserved judgment in this matter, the Full Court has given its judgment in CFMEU v Williams [2009] FCA [sic] 171. His Honour takes the view that the parties should have the opportunity to make such brief written submissions as they desire on the relevance of para [30] of the Full Court's reasons to the events of 28 August 2008. His Honour notes that the parties did not, in their submissions on 25 September 2009, make it clear whether, in the case of each of the CFMEU and the CEPU, those events should be regarded as a single course of conduct and, therefore, as a single contravention. The parties may wish to address that omission in the light of the principles to which the Full Court referred.

Any submission should be filed by 5 February 2010.

In reply to that correspondence, the applicant submitted that the events of 28 August 2008 were not a single course of conduct, and the respondents submitted that they were. Although the parties are agreed on penalty, there is no agreement on the question whether, for the purposes of identifying the permissible range, the CFMEU and the CEPU should each be regarded as then engaging in two “incursions into [penalisable] conduct”: see Attorney-General v Tichy (1982) 30 SASR 84, 93.

31. In their submissions filed in response to my Associate’s correspondence, the respondents said that it was “open” to me to assess penalties on the basis that there was, for each of the CFMEU and the CEPU, only one contravention of s 38 on 28 August 2008. However, it seems that the characterisation of two technically separate transgressions either as one, or as two, contraventions is not a matter of discretion upon which different minds might legitimately differ. It seems to be a matter upon which there will always be a single correct conclusion. If the two transgressions can “fairly be regarded as forming part of the same transgression or [penalisable] enterprise...they should be regarded as one activity or one [contravention]”: CFMEU v Williams [2009] FCAFC 171 at [15]. The question is not merely whether two technical transgressions can be seen as a single course of conduct: it is whether they are properly seen in that way: CFMEU v Williams at [26].
32. In the light of the parties’ fundamental disagreement on this important principle, I do not believe that I could endorse their agreement on penalties for 28 August 2008 unless I were satisfied that the penalties agreed to be paid by the CFMEU and the CEPU were neither manifestly inadequate on the assumption that there were two contraventions (by each Union) on that day nor manifestly excessive on the assumption that there was only one such contravention. I am not so satisfied. Given the prospect that I shall have to hear the applicant’s case as a contested proceeding, it would be inappropriate for me to express my reasons for this conclusion.
33. Also, for reasons referred to in paras 12 and 15 above, I consider that the Statement of Agreed Facts is an entirely inadequate basis for the court to determine whether the penalties proposed for 23 May 2008 and 5 August 2008 lie within the permissible range. Were there nothing else before the court, I would be disposed to take the approach suggested by the Full Court in Mobil Oil ([2004] FCAFC 72 at [15](i)):
    

The Court, if it considers that the evidence or information before it is inadequate to form a view as to whether the proposed penalty is appropriate, may request the parties to provide additional evidence or information or verify the information provided. If they do not provide the information or verification requested, the Court may well not be satisfied that the proposed penalty is within the range.

Given the relationship between these events and those of 14 and 28 August 2008, however, and the matters referred to in the previous paragraph, I consider the better course is simply to decline to proceed in accordance with the parties’ agreement on penalties, and to receive submissions from them as to the future conduct of this proceeding.

34. I have considered whether I should act in accordance with the parties’ invitation to which I have referred in para 7 above. However, I would not be able to dispose of the proceeding within the overall limits there proposed. Again, since there is a prospect that I shall be obliged to resume the hearing of this proceeding on a contested basis, it is better that I do not enter upon my reasons for this difficulty.
35. The only order I propose to make is to list the proceeding for directions at an early date.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 23 February 2010