Australian Building and Construction Commissioner v Powell (No 2)

• Jurisdiction: Australia Federal only
• Judge: BROMBERG J
• Judgment Date: 21 June 2019
• Neutral Citation: [2019] FCA 972
• Court: Federal Court
• Date: 21 June 2019

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972

File number:	VID 704 of 2014
Judge:	BROMBERG J
Date of judgment:	21 June 2019
Catchwords:	INDUSTRIAL LAW – admitted contraventions of s 494(1) of the Fair Work Act 2009 (Cth) – an official of an organisation exercised a “State … OHS right without being a permit holder - making of declarations – principles relating to imposition of pecuniary penalties – whether no penalty should be made where a person contravenes a civil penalty provision on a genuine but mistaken view of the law – relevance of previous contraventions by the respondent of industrial legislation to the penalty to be imposed – proportionality of penalty to contravening conduct – general deterrence – specific deterrence– whether a single course or multiple courses of conduct – principle of totality.
Legislation:	Fair Work Act 2009 (Cth) ss 494(1), 494(2), 546(1) and 557(1) Occupational Health and Safety Act 2004 (Vic) ss 58, 58(1)(f) and 70
Cases cited:	Australasian Meat Industry Employees’ Union v Australia Meat Holdings [1998] FCA 664 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan St Case”) [2018] FCA 957 Australian Competition and Consumer Commission v Oobi Baby Pty Ltd [2008] FCA 1488 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 Mill v The Queen (1988) 166 CLR 59 Ostrowski v Palmer (2004) 218 CLR 493 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 SMEC Holdings Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 609 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529 Veen v The Queen (No 2) (1988) 164 CLR 465
Date of hearing:	1 February 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	58
Counsel for the Applicant:	Mr R Dalton QC with Ms F Leoncio
Solicitor for the Applicant:	Australian Building and Construction Commission
Counsel for the Respondent:	Ms J Watson
Solicitor for the Respondent:	Gordon Legal

ORDERS

		VID 704 of 2014
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSONER Applicant
AND:	MICHAEL POWELL Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	21 June 2019

THE COURT DECLARES THAT:

1. The respondent contravened s 494 of the Fair Work Act 2009 (Cth) on 21 and 22 May 2014, and on 15 July 2014 and 28 October 2014 by, on each occasion, exercising a State OHS right without an entry permit issued by the Fair Work Commission pursuant to s 512 of the Act.

THE COURT ORDERS THAT

1. For his contravention of s 494(1) of the Fair Work Act 2009 (Cth) on 21 and 22 May 2014 and on 15 July 2014 and 28 October 2014, the respondent pay an aggregate penalty of $2,600.

2. The pecuniary penalties referred to in Order 1 be paid to the Commonwealth of Australia within 28 days.

3. There be no order as to costs.

4. The proceeding is otherwise dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1. This proceeding concerns four allegations of the breach of s 494(1) of the Fair Work Act 2009 (Cth) (“FW Act”).

2. Section 494(1) of the FW Act relevantly provided that an “official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder”.

3. The applicant (“ABCC”) alleges that the respondent (“Mr Powell”) contravened s 494(1) by entering a construction site at Ringwood in Victoria (“premises”) occupied by Kane Constructions Pty Ltd (“Kane”) on four occasions between 21 May 2014 and 28 October 2014. At the relevant times, Mr Powell was an employee and an organiser of the Construction, Forestry, Mining and Energy Union (now the Construction, Forestry, Maritime, Mining and Energy Union). Mr Powell was an “official of an organisation” within the meaning of s 494(1) of the FW Act but not a “permit holder” within the meaning of that provision.

4. On each occasion that Mr Powell entered the premises, he did so for the purpose of assisting the duly elected health and safety representative for the premises (“HSR”), a Mr Curnow, and in response to a request made by him pursuant to s 58 of the Occupational Health and Safety Act 2004 (Vic) (“OHS Act”). Section 58(1)(f) of the OHS Act allowed an HSR to, whenever necessary, seek the assistance of any person. Section 70(1) of the OHS Act required an employer, any of whose employees are members of a designated work group, to allow a person assisting an HSR access to the workplace unless the employer considered that the person was not a suitable person to assist the HSR because of insufficient knowledge of occupational health and safety.

5. A threshold issue arose at trial as to whether, upon entering the construction site on each occasion in question, Mr Powell was exercising a “State or Territory OHS right” for the purposes of s 494(1) of the FW Act. If Mr Powell was exercising such a right, and given that Mr Powell was an official but not a permit holder, it would follow that Mr Powell contravened s 494(1) of the FW Act. The constructional issue was determined in Mr Powell’s favour at first instance (Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287) but on appeal, that result was reversed and the proceeding remitted to me (Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470).

6. On the remittal, it is necessary for me to deal with the question of liability in accordance with the Full Court’s determination that ss 58(1)(f) and 70 of the OHS Act confer a “State or Territory OHS right” within the meaning of s 494(1) of the FW Act.

7. It follows, as Mr Powell has now admitted, that he was required to have a permit under the FW Act to exercise the right conferred by s 70 of the OHS Act and, because he held no such permit, s 494(1) was contravened on each occasion that Mr Powell entered the premises.

8. The ABCC...