Case: Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Outcome: cited
In its written submissions on penalty the CPSU submitted, for the first time, that as there were at the relevant time 38,418 CPSU members within the APS whose employment was affected by the DEWR memorandum, the Commonwealth committed 38,418 contraventions of the WR Act by issuing the memorandum. It submitted: '2. It is not unusual to use the singular term when referring to a composite number of penalties arising from a single act. Where multiple penalties are applied in respect of a single act which gives rise to a breach of the WRA, it is common for the orders made by the Court, and the case law, to refer to the penalties imposed as a composite "penalty" . In such cases an order may be made for a single penalty, but the maximum available penalty is determined by the number of persons whose position was relevantly altered giving rise to individual breaches. 3. See for example Commonwealth Bank of Australia v Finance Sector Union of Australia at first instance and on appeal where a single penalty was imposed by Merkel J and apportioned between the breaches. The parties, the primary Judge, and Full Court referred consistently to this composite penalty as a single penalty. 4. Accordingly, the use of the singular word "penalty" may properly be taken to refer to a composite penalty arising from a number of breaches which arise from a single act. In the present case the [Further Amended Statement of Claim] permits such an approach.' 11 Nothing in the reasons for judgment in Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 at first instance or on appeal suggests that the issue of the nature of the claim in respect of penalty that the respondent was required to meet arose for determination in that case. Nor, at least before the Full Court, was any significance ascribed to the use of the word 'penalty' as opposed to 'penalties'. 12 In my view it would be unfair to the Commonwealth to allow the applicants now to depart from what, in my view, they claimed by the amended application; namely an order that the Commonwealth pay a single penalty in respect of the issuing of the DEWR Advice. I accept the submission of the Commonwealth that had it been aware that the applicants sought the imposition of a penalty in respect of each CPSU member within the APS it would have tested the applicants' evidence of the extent of CPSU membership. It may be that in this circumstance the Commonwealth would also have investigated more thoroughly the impact of the DEWR Advice on individual APS employees or different categories of APS employees within the various Departments and agencies. 13 The maximum penalty for a body corporate for a contravention of Part XA of the WR Act is 300 penalty units (s 298U(a)(i) of the WR Act). This translates to $33,000 (s 4AA(1) of the Crimes Act 1914 (Cth)). 14 In Commonwealth Bank of Australia v Finance Sector Union of Australia at [181] I observed: "The authorities accept that the matters to be taken into account in determining whether particular conduct under the Act calls for the imposition of a penalty, and assuming that it does, the amount of the penalty, include: (a) the circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act); (b) whether the respondent has previously been found to have engaged in conduct in contravention of Pt XA of the Act; (c) where more than one contravention of Pt XA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct; (d) the consequences of the conduct found to be in contravention of Pt XA of the Act; (e) the need, in the circumstances, for the protection of industrial freedom of association; and (f) the need, in the circumstances, for deterrence. ( Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at [8]; Australian Workers Union v Johnson Matthey (Aust) Ltd [2000] FCA 728 at [5] ; Employment Advocate v National Union of Workers (2000) 99 IR 376 at 377 at [5]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v DMG Industries Pty Ltd (2000) 102 IR 175 at [10]; Australian Nursing Federation v Alcheringa Hostel Inc [2004] FCA 375 ; (2004) 136 FCR 530 at [44] ; and Alfred v Walter Construction Group Ltd [2005] FCA 497 at [10] .)'