Case: Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548
Outcome: applied
agreed statement of facts includes agreement as to the making of declaratory orders. The parties invite the Court to make a declaration that the first and second respondents have each contravened s 38 of the BCII Act "by reason of the matters in paragraphs 20 to 22 and 26 to 31 of the Statement of Agreed Facts". They also invite the Court to make a declaration that the first and second respondents have each contravened s 44 of the BCII Act "by reason of the matters in paragraphs 12 to 22 and 32 to 35" of the statement of agreed facts. Orders in this form would be totally pointless. If declarations that are not true declarations of right are ever to be made, their only justification can be to provide some kind of record of what has been found to have occurred in a particular case. For that purpose, it is necessary that any such declaration contains sufficient detail to provide such a record. To require any person who might be interested in reading such a record to go from the order to a document found only on the relevant Court file would not fulfil any function at all. The function of recording the Court's findings, principally fulfilled by the Court's reasons for judgment, can also be fulfilled by specifying in an order relating to a penalty the conduct in respect of which the penalty has been imposed. See, for example, the orders made by Jessup J in Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548. For these reasons, I decline to make the declarations sought by both parties. The statement of agreed facts also records the agreement of the parties that there is to be no order as to the costs of the proceeding. The task of the Court is to assess and impose appropriate penalties, or an appropriate penalty, in respect of the admitted contraventions. The applicant seeks no penalty against the second respondent, who has retired from the construction industry. Penalties against the first respondent are to be assessed solely on the basis of its vicarious liability for the conduct of the second respondent. Assessing the penalty There were conflicting submissions by counsel for the parties about the extent to which I should take into account previous findings of contraventions of the BCII Act by the first respondent. The conflict concerned such matters as the relevance of contraventions of provisions of the BCII Act other than those directly in issue in the present case, and whether it was legitimate to take into account contraventions brought about by the activities of branches of the first respondent in states other than Victoria, which might be affected by the degree of autonomy under which branches function. These questions are now largely dealt with in the judgment of Jessup J in Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 , to which the parties referred me in writing by agreement after the close of argument in the present case. It is unnecessary to repeat what is said in that case. For present purposes, it is sufficient for me to say that I deal with the first respondent on the basis that it has a record of prior contraventions of the BCII Act and similar provisions, in circumstances having some similarities to those of the present case. It is not surprising that an organisation in the position of the first respondent will have some difficulty adjusting to legislation that applies sanctions in an attempt to bring about a change to an entrenched culture. It remains to be seen whether repeated imposition of penalties, and lapse of time, will bring about greater compliance. The first respondent cannot be treated as having first offender status for the purposes of this case. On the basis of the affidavit filed on behalf of the applicant, I accept that the first respondent has ample financial capacity to meet a penalty. It cannot seek leniency on the basis of poverty. It is unnecessary to go to the details of its assets. Counsel for the applicant acknowledged that there is no evidence that senior management of the first respondent was involved in the contraventions. He relied on the absence of any apology by either respondent to Celltech, or any expression of regret, contrition or remorse on the part of either respondent. He also relied on the absence of evidence of any corrective action taken by either respondent in relation to the contraventions. It is true that there is an absence of evidence about any of these matters. More controversially, counsel for the applicant asserted that there had been no cooperation by the respondents with the applicant until shortly before the trial, when settlement was achieved. Apart from making what counsel for the applicant described as limited admissions of facts, the respondents contested the allegations made against them up to that time, causing the applicant to have to prepare for a contested trial involving a large number of witnesses, and to incur costs in doing so. As I have said, when the proceeding commenced it involved many more allegations of contraventions than those that are now its subject. It is as difficult to be critical of the respondents for denying allegations that the applicant chose not to proceed with in procuring a settlement as it is to be critical of the applicant for making those allegations in the first place and being prepared to discard them to achieve a settlement. The fact is, cooperation between the parties has had the effect of reaching a settlement and saving the costs of the parties, and the expenditure of public money, that would have been involved in a full-scale trial on all of the applicant's allegations. The respondents may even have gone further in making admissions than they need have done, by admitting the element of intent to apply undue pressure. As I have said, in the circumstances, it is difficult to see that the second respondent in fact had that intent, although I am required to deal with the case on the basis that he did. In the criminal law, a plea of guilty entitles an accused person to favourable consideration in sentencing, irrespective of the stage at which the plea is entered. In my view, the respondents are entitled to be regarded as having cooperated to the extent that they did, and not to be criticised for having failed to admit to the full range of allegations made in the original statement of claim and submitted to penalties in respect of the full range of contraventions alleged.