Case: Ponzio v B &amp; P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Outcome: discussed
is a repetition of what was said by French J in Trade Practices Commission v CSR Ltd (1991) ATPR p41-076 at 52,152. See also Trade Practices Commission v Pye Industries Sales Pty Ltd (1978) ATPR p40-089 at 17,859; Ponzio v B &amp; P Caelli Constructions Pty Ltd (2007) 158 FCR 543 per Lander J at [93] and per Jessop J at [164]. The respondents referred to Ponzio , a recent Full Court decision about the imposition of penalties under the WR Act. This was a case against an employer under the former s 187AA and the CFMEU and two of its officials under former s 187AB of the WR Act. It concerned payment to employees for a period of industrial action. It adds nothing of significance to the relevant principles involved in the imposition of a penalty. In that case, a penalty of $5,000 was imposed on the employer; none of it was to be paid if the company did not breach any provision of the WR Act for a year. The employer was regarded as being less culpable than the union. A penalty of $6,000 was imposed on the CFMEU. No penalty was imposed on the two officials but declarations were made that they had breached the WR Act. This was the highest penalty imposed under those sections. The other penalties in the 4 earlier cases ranged from $200 to $4,000: [130]-[133] per Jessup J. There have been two cases where penalties have been imposed for contraventions of ss 127 and 178 of the former WR Act. I have given no weight in assessing the appropriate penalties to the view of the workforce that Ballard had been unfairly or unlawfully sacked or in relation to the asserted 'sharp practice' on the part of LKJV: Ponzio at [90] per Lander J. In any event I am unable, on the evidence, to conclude that the respondents' perception that Ballard was unfairly or unlawfully terminated was reasonably based or not. Nor am I in a position to characterise the conditions put by the LKJV for his reinstatement as constituting 'sharp practice', or as being provocative. There was no direct evidence as to this nor am I able to infer it. In any event, if Ballard considered that he had been either unfairly or unlawfully terminated in his employment, then he had both a contractual obligation and a remedy at law. There was a mandatory Dispute Resolution Procedure under the Certified Agreement (cl 4.5) for the resolution of disputes. Ballard was obliged to follow this. He did not. Additionally, an application for relief under s 643(1) of the WR Act was available to Ballard on the ground that the termination was allegedly harsh, unjust or unreasonable. Indeed it was a term of the LKJV New Metro Rail City Project Structural Certified Agreement 2004 that termination of employment by the Joint Venture shall not be harsh, unjust or unreasonable (cl 2.2.3). I was informed by senior counsel for the respondents that Ballard had made an application in relation to his alleged unfair dismissal, claiming that it was harsh, unjust and unreasonable and constituted discrimination. The respondents' perception that Ballard's dismissal was unfair or unlawful did not constitute a warrant for the unlawful industrial action, nor does it constitute any relevant mitigating circumstance. It would be extraordinary if a wilful disregard of the main object of the legislation, and in particular, in this case, the promotion of the rule of law, should be regarded as somehow mitigating the contravention. Mr Rozen, who represented the 7 th , 8 th , 9 th , 12 th , 14 th , 16 th , 28 th , 37 th and 64 th respondents, conceded in argument that the unlawful industrial action was, (in part) clearly motivated by an attempt to bring financial pressure to bear on the LKJV to achieve the reinstatement of Ballard rather than through lawful means. In my view, that concession was correctly made and underlines the seriousness of the conduct. I do not accept that merely because they are employees as opposed to a union, union officials, or an employer, that there is, in principle, any different approach which should be taken on the question of penalty. In any one case there may be different levels of culpability. Each matter requires to be considered by reference to its own facts and circumstances. I was told by senior counsel for the respondents that orders of the AIRC were frequently disobeyed and that this, traditionally, was not regarded as serious. It was also held that this was the first time in which penalty proceedings had been taken against employees in that capacity. This, it was said, was for historical reasons, grounded in the way that industrial disputes have in the past been fought. In Ponzio , a Full Federal Court made a series of detailed declarations concerning contraventions of the WR Act, on the basis of facts established by an agreed statement of facts. It is apparent from that form of declaration in that case that the Full Court was prepared to accept the detail in the agreed statement of facts as a proper factual foundation for the making of declarations. I propose that equivalent declarations should be made in this case. I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 20 December 2007 Counsel for the Applicant: Mr R J H Maidment SC with Mr R L Hooker and Dr S Donaghue Solicitors for the Applicant: Lavan Legal Counsel for Respondents 1-6, 10-11, 13, 15, 17, 19-23, 26-27, 29-36, 39-43, 45-53, 55-62, 66, 68-71, 73-75, 77, 79-81, 83-87, 90-97, 99-107 Mr R Richter QC with Mr K Bonomelli Counsel for Respondents 7, 8, 9, 12, 14, 16, 28, 37 and 64 Mr P Rozen Solicitors for the Respondents: Jeremy Noble, Barristers &amp; Solicitors Date of Hearing: 5 November 2007 Date of Judgment: 20 December 2007 SCHEDULE 1 BREACH OF SECTION 38 OF THE BCII ACT UNLAWFUL INDUSTRIAL ACTION 24, 25, 27, 28 FEBRUARY 2006, 1, 2 AND 3 MARCH 2006 No. RESPONDENT NAME RESPONDENT NUMBER 1 Gordon William Aldin 1 2 Stephen Banks 4 3 Richard John Beck 5 4 Nathan Ryan Bennett 6 5 Robert Biondillo 7 6 Robert Neil Bradbury * Respondent 9 only engaged in unlawful industrial action on 24, 27, 28 February 2006 and 1 March 2006. 8 7 John Francis Bradley 9 8 Jamie Brearley 10 9 Tim Hugh Brown 11 10 Greg James Brown * Respondent 14 only engaged in unlawful industrial action on 28 February 2006 and 1 3 March 2006. 12 11 Mathew Bruce 13 12 Michael Burke 14 13 John Joseph Byrne * Respondent 16 only engaged in unlawful industrial action on 28 February 2006 and 1 3 March 2006. 15 14 David Barrie Cameron 16 15 Terry Allan Collins 17 16 Martin Rashleigh Corbett 19 17 Graeme Cowling 20 18 Robert John Coyle 21 19 Robert William Crampton 22 20 Christopher Albert Crawford 23 21 Glenn James Daniels 26 22 Stuart John Davies 27 23 Dronzo Laurie De Bari 28 24 Kevin John Donlan 29 25 James Patrick Doyle 30 26 John Engel 31 27 Michael Evans 32 28 Gerard Patrick Farhi 33 29 Alessandro Forte 34 30 Paul Desmond Gleeson 35 31 David Joseph Golding 36 32 Shane Robert Greaves 37 33 David Hackett 39 34 Matt Charles Harvey 40 35 Zachary James Haywood 41 36 Lawrence Henry Healey 42 37 Charlie Graham Isaacs 43 38 Clinton Larkin 45 39 Wayne Robert Lee 46 40 Kevin Joseph Liddy 47 41 Mathew David Lothian 48 42 Colin Henry Luff 49 43 Iain MacBeth 50 44 Ronald John Marsh 51 45 Frank McMahon 52 46 James Dzemal Memic 53 47 Jeremy Kane Mills 55 48 Lindsay John Morison 56 49 Darren Raymond Morris 57 50 Richard Michael Mulcahy 58 51 Michael John Mulcahy 59 52 David Martin Murphy 60 53 Peter David Napper 61 54 Anthony Peter Nichols 62 55 Andrew John O'Donnell 64 56 Stephen Francis O'Sullivan 66 57 John Pes 68 58 Malcolm Stanley Peters 69 59 Fiorello Reitano 70 60 Brent David Rothsay 71 61 Joshua Gerald Scott 73 62 Alan Charles Semple 74 63 Daniel Spizzirri 75 64 John Graham Storrie 77 65 John Anthony Terriaca 79 66 Gary Frederick Wagstaff 80 67 Jye McNamara Walsh 81 68 Steven Barnett 84 69 Nathan Jay Bennett 85 70 Neil Lenard Bennett 86 71 Andrew Patrick Bowden 87 72 Dean Jason Coyle 90 73 Skye Maree Coyle 91 74 Ross Alan Curby 93 75 Stephen Ray Eaton 94 76 Matthew Bruce Ferguson 95 77 Errol Joseph Ferguson 96 78 Mark Phillip Galli 97 79 Scott John Gray 99 80 Wayne Clifford Hawkins 100 81 Scott Anthony Heap 101 82 Dean Michael McBride 102 83 Michael John Moran 103 84 Nemo Mouchemore 104 85 Darren Lee Reiher 105 86 Lee Elliott Soden 106 87 Maksi Vujcic 107 SCHEDULE 2 BREACH OF SECTION 127 ORDER UNLAWFUL INDUSTRIAL ACTION 24, 25, 27, 28 FEBRUARY 2006, 1, 2 AND 3 MARCH 2006 No. RESPONDENT NAME RESPONDENT NUMBER 1 Gordon William Aldin 1 2 Stephen Banks 4 3 Richard John Beck 5 4 Nathan Ryan Bennett 6 5 Robert Biondillo 7 6 Robert Neil Bradbury 8 7 John Francis Bradley * Respondent 9 only engaged in unlawful industrial action on 24, 27, 28 February 2006 and 1 March 2006. 9 8 Jamie Brearley 10 9 Tim Hugh Brown 11 10 Greg James Brown * Respondent 14 only engaged in unlawful industrial action on 28 February 2006 and 1 3 March 2006. 12 11 Mathew Bruce 13 12 Michael Burke 14 13 John Joseph Byrne * Respondent 16 only engaged in unlawful industrial action on 28 February 2006 and 1 3 March 2006. 15 14 David Barrie Cameron 16 15 Terry Allan Collins 17 16 Martin Rashleigh Corbett 19 17 Graeme Cowling 20 18 Robert John Coyle 21 19 Robert William Crampton 22 20 Christopher Albert Crawford 23 21 Glenn James Daniels 26 22 Stuart John Davies 27 23 Dronzo Laurie De Bari 28 24 Kevin John Donlan 29 25 James Patrick Doyle 30 26 John Engel 31 27 Michael Evans 32 28 Gerard Patrick Farhi 33 29 Alessandro Forte 34 30 Paul Desmond Gleeson 35 31 David Joseph Golding 36 32 Shane Robert Greaves 37 33 David Hackett 39 34 Matt Charles Harvey 40 35 Zachary James Haywood 41 36 Lawrence Henry Healey 42 37 Charlie Graham Isaacs 43 38 Clinton Larkin 45 39 Wayne Robert Lee 46 40 Kevin Joseph Liddy 47 41 Mathew David Lothian 48 42 Colin Henry Luff 49 43 Iain MacBeth 50 44 Ronald John Marsh 51 45 Frank McMahon 52 46 James Dzemal Memic 53 47 Jeremy Kane Mills 55 48 Lindsay John Morison 56 49 Darren Raymond Morris 57 50 Richard Michael Mulcahy 58 51 Michael John Mulcahy 59 52 David Martin Murphy 60 53 Peter David Napper 61 54 Anthony Peter Nichols 62 55 Andrew John O'Donnell 64 56 Stephen Francis O'Sullivan 66 57 John Pes 68 58 Malcolm Stanley Peters 69 59 Fiorello Reitano 70 60 Brent David Rothsay 71 61 Joshua Gerald Scott 73 62 Alan Charles Semple 74 63 Daniel Spizzirri 75 64 John Graham Storrie 77 65 John Anthony Terriaca 79 66 Gary Frederick Wagstaff 80 67 Jye McNamara Walsh 81 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2068.html