Case: Australian Competition &amp; Consumer Commission v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union [2004] FCA 517
Outcome: considered
developing this contention the CFMEU relied on comments made by Gray J in Australian Competition &amp; Consumer Commission v Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union [2004] FCA 517. In that case, three unions admitted to engaging in conduct in contravention of s 45D of the Trade Practices Act 1974 (Cth) and agreed that each union should pay a penalty of $100,000.00. Gray J stated that he would have imposed a penalty considerably less than that agreed and, as the penalties were uniform, considered that no attempt had been made to attribute relative blame amongst the respondents. His Honour noted that: The CFMEU emphasised the statement by Gray J (at [8]) that, "[i]n these circumstances, to call upon the respondents each to pay such a large sum from their resources, which ultimately come from the pockets of wage-earners appears to be excessive." However, tellingly, his Honour also said (at [10]) that "[a] factor that would tend to increase the size of the penalty is that the picket continued to be operated despite the orders of the Australian Industrial Relations Commission." It is also necessary to bear in mind that his Honour was not dealing with a charge of contempt, but with a penalty for admitted breaches of the Trade Practices Act where the penalty was capped by statute and in circumstances where the parties had agreed on a penalty which was greater than that his Honour would have otherwise ordered. Importantly, his Honour specifically held that, a breach of orders, made by the Commissioner, would warrant the imposition of a more severe penalty than might otherwise be called for. No evidence was submitted by the CFMEU as to its financial position, or how the payment of a fine would penalise "innocent persons" not involved in the contempt. On the limited evidence before me, it is difficult to see how the payment of a fine would penalise "innocent persons" except in the sense that any monetary penalty which is paid out of the union's funds would not be available to be applied to activities which might be thought to advance the interests of members. This will always be the result whenever a union is required to pay a penalty for contempt or a contravention of some statutory provision. It cannot operate as a bar to the imposition of penalties. A court may impose a lower penalty if the offending conduct is carried out by rogue officials and members. Where, as is presently the case, the conduct is that of elected officials who were acting in the course of their duties, the fact that ordinary members of the organisation may, perhaps, be affected by the imposition of a penalty, will weigh far less heavily. If the members are dissatisfied with the conduct of the officers who have engaged in or condoned the offending conduct they may vote against them when they next stand for election. The effect of the contempt on the administration of justice The CFMEU sought to argue that the contempts did not have a significant adverse effect on the administration of justice. In this context it also relied on its submissions that the Court should have regard to the fact that the objectives of the Order were not circumvented and there was no loss or damage as a result of the contempt. For the reasons outlined above, I either do not accept these submissions or accord them little weight. In addition, the CFMEU contended that it was entitled to rely on the presumption of innocence in relation to the charges laid by the Applicant which were not established and that it was proper for the Court to consider what it described as its "partial compliance" with the Order.