Case: Ponzio v B &amp; P Caelli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543
Outcome: applied
Each of the factors constituting breaches of s 187AB(1)(a) and (b) amount to one breach for each respondent of each of those paragraphs. This approach is consistent with that adopted by Jessup J in Ponzio v B &amp; P Caelli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 at 575-576. 29 The authorities suggest that in matters involving contraventions of civil penalty provisions the following factors are relevant: &#8226; the circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act ); &#8226; whether the respondents have previously been found to have engaged in conduct in contravention of the relevant part of the Act ; &#8226; whether the various contraventions are properly seen as distinct or whether they arise out of one course of conduct; &#8226; the consequences of the conduct found to be in breach of the Act ; and &#8226; the need for deterrence. 37 Counsel for Mr Cahill refers to the fact that the CFMEU has previously been fined for engaging in industrial action contrary to the Act . He refers to previous transgressions against s 187AB in Ponzio [2007] FCAFC 65 ; (2007) 158 FCR 543 as well as transgressions of other provisions. 38 Consistently with the approach taken in Ponzio [2007] FCAFC 65 ; (2007) 158 FCR 543 , I consider that a penalty should be imposed on the CFMEU, because the CFMEU officially applied pressure to representatives of Bovis to pay strike pay to CFMEU members. Bans were imposed at another Bovis site as part of that pressure in addition to stoppages at the site. Also, costly industrial action occurred over several days. The breaches, although in response to a safety issue, were deliberate. Resolution of the safety issue did not require the taking of industrial action. There was no reason why work could not continue on other parts of the site which were unaffected by the spill. So much is consistent with the safety disputes resolution procedure which is commonly applied on building sites. That procedure involves the immediate problem being isolated and work being performed elsewhere when it is safe to do so. 39 I accept that there is no need for specific deterrence. The making of claims for strike pay is not now a feature of the construction industry. The events the subject of this proceeding occurred nearly four years ago in a vastly different industrial climate to that which currently exists. I accept there is some need for general deterrence, although not to any great extent, as breaches of this type are now rare, and will be so, irrespective of what percentage of the maximum penalty is imposed on the CFMEU. 40 The CFMEU is a large organisation with nationwide coverage. I do not consider that the actions of other branches or officials (other than those involved in this matter) in respect of other provisions of industrial legislation should be visited upon them for the purposes of assessing penalty. I form a different view, of course, concerning prior contravention of s 187AB. 41 Weighing up all the circumstances and relevant sentencing factors, including the CFMEU's co-operation in the proceeding with Mr Cahill and its expenditure of funds in its involvement in the proceeding, I consider that a penalty of $4,000 is an appropriate one, doing one's best to weigh together all the countervailing factors referred to above and applying the totality principle to the contraventions; see Ponzio [2007] FCAFC 65 ; (2007) 158 FCR 543 per Jessup J at 575 and Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 per Gray J at [23] and Graham J at [66] and [71-73]. 43 An important factor in striking the appropriate penalty at a rate set slightly below that struck by the majority in Ponzio [2007] FCAFC 65 ; (2007) 158 FCR 543 is that it is now April 2008 and since May 2004 there have been no new applications alleging any breaches of strike pay provisions of the Act , including as amended on 27 March 2006 by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). The only other breaches of the strike pay provisions of the Act arose out of a single death in the industry in August 2003. The other significant matter in this case is the cooperation of the CFMEU in ensuring that the Court dealt with penalty on agreed facts thus saving much time and expense. 44 I consider that no useful purpose would be served by fining Mr Setka or Mr Tadic. Mr Setka was simply doing his job as a union official in accordance with the CFMEU's then approach to safety issues and strike pay. That approach has changed. Mr Setka, like other organisers in the industry, does not now make claims for strike pay. His conduct was that of an agent for his employer. He represented the members of the CFMEU in accordance with its then corporate approach to issues of the type dealt with in these reasons for judgment. 45 I also consider that no useful purpose would be achieved by fining Mr Tadic. He was performing his representative role as a shop steward. No doubt, he was guided by the more industrially experienced Mr Setka and the then expectations of the CFMEU. Shop stewards in the industry are now well aware that agitating for strike pay is a thing of the past.