Case: Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia (2005) 148 IR 242
Outcome: applied
addition, Ryan J's judgment in Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia (2005) 148 IR 242 (" United Firefighters "), suggests that, in the context of the imposition of penalties in respect of a contravention of an order of the AIRC under s 127 of the WR Act, the following additional factors are relevant: (a) an absence of any basis for misapprehension about what the Order commanded; (b) whether a party in breach has previously contravened an order under s127; and (c) the need to deter participants in industrial relations administered under the WR Act from flouting or disregarding orders of the AIRC, "especially where those orders have been made after a full hearing of both sides and have been tailored to meet the exigencies of a particular industrial dispute". Deterrence The respondents submitted that, in this case, the primary consideration is deterrence and in that regard general deterrence is more important than specific deterrence. The applicants' submissions were to the same effect. I accept this submission. This is not to say that specific deterrence is not of importance. This approach is consistent with the main object of the Act to which I have referred. It was further submitted by the applicant that the admitted contraventions of s 127 of the WR Act were similarly serious, having regard to: (a) the clear and unmistakeable command of the AIRC, as expressed in clause 4(a) and (b) of the Order and accordingly the absence of any basis for misapprehension of what the further 67 respondents were being directed to refrain from doing; (b) the exceptional nature of the Order in that it was made for the life of the Project; (c) the very substantial consequences of the industrial action during the Period, as identified above; (d) the particular need for deterrence of participants in the industrial relations system from flouting such orders, as referred to by Ryan J in United Firefighters . The applicant favours a disposition of this matter in terms that involve an immediately payable penalty, and a significant suspended penalty, that will apply for a considerable period of time, being three years. The penalty provisions contained in s 49(1)(c) of the BCII Act contemplate the making of "any other order that the court considers appropriate". This, it is submitted, will serve to achieve the objectives of both specific and general deterrence. In all of the circumstances, the applicant submitted that the following penalties are appropriate and should be considered as being at the lower end of the available range: (a) in respect of each of the respondents for admitted contraventions of s 38 of the BCII Act, a penalty of $9,000 of which $3,000 should be payable within 28 days and the balance of $6,000 suspended for 3 years, to be paid only if the respondent further contravenes the BCII Act or the WR Act during the period of the suspension; and (b) in respect of each of the 67 respondents who have admitted contraventions of s 178 of the WR Act, an additional penalty of $3,000 of which $1,000 should be payable within 28 days and the balance of $2,000 suspended for 3 years, upon similar terms. In United Firefighters, a union was fined $2,500 and its secretary was fined $500 for contravening a s 127 Order. The maximum penalties were $30,000 and $6,000 respectively. The union defended the case. It was submitted that the present action being the first of its kind, seeking to penalise individual employees as distinct from a union or its officers should therefore be seen in the context of the imposition of penalties for new offences. It was further submitted that it is a clear principle of sentencing that for a new offence, the penalties will normally be regarded as having to start at a low level before any subsequent penalties are considered within a context of escalating requirements for deterrence and punishment. No authority was cited for such a principle. I invited senior counsel for the respondents, if he so wished, to provide such authority in supplementary submissions. None have been provided. Finally it was submitted that the appropriate penalty range in this case falls very much towards the bottom end of the range for the reasons and that because of the novelty of the application, that any penalty imposed should be fully suspended. In this way, it was said, the Court could, with justice, mark the punishment and issues of specific and general deterrence to the extent required in this instance. Double Punishment Those respondents who have admitted contraventions of both the WR Act and the BCII Act submit that the contraventions arise from the same conduct and that they ought not to be punished twice for that same conduct. It was not submitted that s 4C of the Crimes Act 1914 (Cth) which prohibits a person from being punished twice for the same act or omission, has any direct application here. The admitted contraventions are not offences. In any event, it is not the case, in my opinion, that the contraventions arise from the same conduct, if by that it is meant that the elements which comprise the contraventions in the case of each of the BCII Act and the WR Act are the same.