Case: Australian Competition and Consumer Commission (ACCC) v IPM Operations Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11
Outcome: referred to
J in Australian Competition and Consumer Commission (ACCC) v IPM Operations Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 at [66] said, concerning the two aspects of deterrence, "that for a penalty to achieve these objectives, it must be imposed at a meaningful level, consistent with the other considerations that must be taken into account in determining the appropriate level of penalty". There is a need, as his Honour said, to show "the seriousness with which the Court considers such contraventions". In support of his submissions relating to penalty, the applicant relies upon: (a) the Statements of Agreed Facts; (b) affidavit of Robert John Wallwork sworn on 23 October 2007, paragraphs 1 to 9 and 118 to 125 (both inclusive); (c) affidavit of Francis Patrick Hannagan sworn on 19 October 2007; (d) affidavit of Nigel Clive Hadgkiss sworn on 26 October 2007; and (e) affidavit of Douglas Bevan sworn on 17 October 2007 paragraphs 1-32 and 83-129. There was no cross-examination of any of the deponents. Indeed by agreement between the parties, they were not required to attend. The applicant submitted that the breach of s 38 of the BCII Act in this case was serious, having regard to the following matters which are drawn from a combination of the several affidavits relied upon as well as the Statements of Agreed Facts: (a) It involved the withdrawal of labour by a substantial number of workers, in circumstances that effectively stopped all work on a major and complicated construction project of public importance. The Project involved tunnelling below the Perth central business district and the unlawful industrial action occurred at a critical stage of this tunnelling. Two full weeks of tunnelling were lost; (b) The contraventions were deliberate in nature and in knowing defiance of the law, the respondents having been advised by their union that they would be exposed to very serious penalties for taking unlawful industrial action; (c) the Strike had a duration of 7 days, although in the case of each respondent it involved one period of industrial action and thus, for the purpose of imposing penalties in this case, one contravention of the BCII Act; (d) the Strike caused LKJV to incur substantial losses. Mr Wallwork, in his affidavit, identified the following actual and contingent losses amounting to more than $1.6 million: Leighton Contractors, one of the LKJV joint venturers, is exposed to the potential claim under a Deed entered into with the Public Transport Authority, for liquidated damages at the rate of $52,000 per day for each day that the project goes beyond the date for practical completion of the Project; daily recurring overhead costs of approximately $5,000 per day; other preliminary costs of approximately $48,000 per day; and other irrecoverable out-of-pocket expenses of approximately $45,000-$55,000 per day; (e) the Strike occurred in contravention of an order of the AIRC for industrial action to stop or not occur which came into force on 6 December 2005 and was to remain in force until 1 July 2007, notice of that order having been placed on the LKJV notice board which was used to convey information to the workers and served upon the relevant respondents; (f) the Strike had the potential to cause substantial safety issues and damage to property, as the project involved tunnelling and stoppage of the tunnel boring machines has the potential to cause serious damage to the tunnel boring machine as well as to buildings above. A worst case scenario could have involved a tunnel collapse; (g) the delay on the project caused by the Strike gave rise to public inconvenience, the railway project being for the benefit of the public, in particular commuters to and from the Perth CBD; and (h) none of the action taken during the Period was based on a reasonable concern by any respondent about an imminent risk to his or her health or safety.