Case: Temple v Powell [2008] FCA 714 ; (2008) 173 IR 189
Outcome: discussed
agree with his Honour's observations: compare Williams v Construction, Forestry, Mining and Energy Union (No 2 ) [2009] FCA 548 at [16] per Jessup J and Temple v Powell [2008] FCA 714 ; (2008) 173 IR 189 at 209 [64] per Dowsett J. In support of this proposition, the respondents relied on Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 390 and Temple v Powell 173 IR 189 at 209 [63]. In Leighton Contractors , the Supreme Court of Western Australia was called to fix a penalty for contravention of s 38 of the Building and Construction Industry Improvement Act . In connection with the Union's prior contraventions, after citing with approval the comments of Branson J in Coal and Allied Operations Pty Ltd (No 2) 94 IR 231 (see [9] above), Le Miere J said (at 390 [67]) that: One matter her Honour considered was whether the respondent had previously been found to have engaged in conduct in contravention of Pt XA of that Act. In my view, that is the correct approach. It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the first defendant anywhere in Australia. The first defendant is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of the conduct of the first defendant through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in questions and are contraventions of different legislation. In imposing penalties in respect of admitted breaches of ss 170MN and 178 of the Workplace Relations Act and s 38 of the Building and Construction Industry Improvement Act , Dowsett J said in Temple v Powell 173 IR 189 at 209 [63]: The respondents submitted that in a large organisation such as the CFMEU, with autonomous state branches, it is not necessarily appropriate to treat conduct by all branches throughout the country as relevant past conduct for the purpose of fixing a penalty in connection with the unlawful conduct of one branch. There is substance in that submission. Whether previous misconduct is relevant to fixing a penalty is a question of logic. In some cases a pattern of conduct across the country may suggest a nationwide plan of action or a national culture of misconduct. In other cases it may appear that a particular branch or geographical region has acted alone in adopting a plan of action or has developed a particular culture. It was also submitted that past conduct cannot operate so as to increase the penalty beyond that which is appropriate to the misconduct in question. That proposition mat be correct, but it should not be taken as implying that past misconduct is irrelevant to the fixing of penalty. In neither of these passages was the Court laying down a hard and fast rule that prior contraventions of another autonomous division or branch of the Union should never be taken into account. Whether or not prior contraventions will be relevant and, if relevant, accorded any and what weight will necessarily depend on the nature and circumstances, as disclosed in the record of the prior contraventions. In this context, if it appeared that a series of prior contraventions were part of any nationwide campaign, then this would plainly militate against an offending union. Plainly too, a union, considered as a single entity, cannot shrug off responsibility for prior contraventions just because they were geographically widespread. I accept that, as the relevant legislation provides, an organisation that organises itself into national and state division or branches is accountable for how its representatives operate, whether at divisional or branch level. This does not precisely answer the point at issue, however, because the place where a prior contravention occurred, the status of the Union representative through whom liability arose, and the nature of the organisation (here, including the structure of the Union) are, just like the date and precise nature of the conduct in question, a part of the circumstances to be considered when the weight to be given a prior contravention falls for determination. Prior contraventions may be indicative of a pattern of misconduct on the Union's part or a culture of disregard for the law. Or the circumstances may indicate that care should be taken in giving too much weight to these possibilities, particularly when it is apparent that the liability of the Union has come about through the actions of a site delegate or other local representative or member who may well be more affected by matters close at hand than any shared national interest, culture or concern. In many cases, these may be matters of impression that are not capable of too close analysis.