Case: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467
Outcome: cited
the contraventions in each case contain common elements, namely, unauthorised industrial action by involvement in the Strike. This is a relevant consideration in weighing the appropriate penalty to be imposed: The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228. To punish twice for conduct that contains an area of overlap "would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts": Pearce v R [1998] HCA 57 ; (1998) 156 ALR 684 at [40] . These matters therefore give rise to considerations of cumulation and concurrence, as well as totality: Pearce at [45]; Mill v R [1988] HCA 70 ; (1988) 166 CLR 59; Finance Sector Union v The Commonwealth Bank of Australia (2005) 224 ALR 467 at [25]. If that was the position then it is no longer the position. In Finance Sector Union v Commonwealth Bank of Australia at [72], Merkel J observed that: may be that breaches by unions and employers of industrial legislation from time to time have been accepted as part of the give and take of industrial disputation. However, in recent years industrial legislation has increasingly codified and prescribed what is acceptable, and what is unacceptable, industrial conduct. The legislature has, over time, also moved to increase the penalties that may be imposed in respect of unlawful industrial conduct. In my view, any light handed approach that might have been taken in the past to serious, wilful and ongoing breaches of the industrial laws should no longer be applicable. The penalty imposed by Merkel J in respect of the contraventions of s 298K of the WR Act in the above case ($600,000) was overturned on appeal and substituted for a penalty of $300,000. Importantly, however, Branson J (with whom Spender J agreed in relation to the reduction in penalty) indicated that there was no demonstrable error of principle affecting the penalty imposed by Merkel J at first instance. Her Honour reaffirmed the warning that it may well be that it is appropriate for penalties imposed under the WR Act to rise and rise appreciably. That case was not concerned with breaches by employees, but as I have said, I do not consider that they stand in any different category. I have had regard to part of the Second Reading Speech of the BCII Act which is instructive in this respect: Bill reflects the Government's commitment to ensuring the law applies and is observed equally by all participants in the building and construction industry, regardless of whether they are union officials, employers or workers. industrial record of this industry is deplorable. Royal Commissioner found that the prevalence of industrial action in the building industry is unique. He noted Underlying the attitude of participants in the industry is a disregard of the rule of law, and the adoption of a short term attitude, commercially driven, of expediency. In particular, unions know that the prospect of being held civilly responsible for the losses they cause is remote. [Volume 11, page 10, para 33] level of industrial disputation in the construction industry is substantial. For example, in 2003-04 the construction industry employed 8 per cent of all employed persons in Australia. For the same period, these workers accounted for over 21 per cent of working days lost. action negatively impacts upon industry productivity. Industrial unrest and time lost through work stoppages cause immediate loss to head contractors, subcontractors and employees. Even short strikes can cause commercial damage because standing charges and overheads continue even if work on site stops. Commissioner Cole found project completion delays, with contractual penalties of up to $250,000 a day, are a compelling incentive for employers to surrender to union demands. those who engage in unlawful industrial action in this industry are seldom held accountable. In addition, the current system for recovery of loss due to unlawful industrial action is difficult, costly and time consuming. As Commissioner Cole noted Litigation for loss recovery is regarded as a bargaining chip to be used in future resolution of industrial disputes, rather than as a serious attempt to hold those causing loss responsible for it. [Vol 11, page 13, chapter 1] Bill seeks to implement a framework where unlawful industrial action is not tolerated and those taking such action are brought to account for their lawlessness. I have also taken into account the mitigating factors which are set out above. I have been advised that any penalties which I impose on the respondents will not be paid by them personally although this would not apply to any suspended penalties which became payable upon a further contravention. From around February 2007, the ACTU and CFMEU established and maintained a national fund, known as the Mandurah Dispute Fighting Fund. The monies in the fund will be used to meet the costs of the penalties and legal costs incurred by the respondents. The impecuniosity of individual respondents is not raised as an issue in the proceedings.