Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 29 November 2021
• Neutral Citation: [2021] FCA 1481
• Date: 29 November 2021

FEDERAL COURT OF AUSTRALIA

Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481

File numbers:	NSD 596 of 2017 NSD 1594 of 2017
Judgment of:	LEE J
Date of judgment:	29 November 2021
Catchwords:	INDUSTRIAL LAW – civil penalties – compensation for loss and damage to “remedy the effect” of conduct contravening ss 417 and 421 of the Fair Work Act 2009 (Cth) (FW Act) – principles to be applied – productivity loss – whether pecuniary penalties should be imposed – principles in relation to the imposition of pecuniary penalties – seriousness of contraventions – whether contraventions occurred as a single course of conduct – relevance of individual factors including contrition and remorse, cooperation, a culture of compliance and capacity to pay
Legislation:	Acts Interpretation Act 1901 (Cth) ss 18A, 33(2A) Corporations Act 2001 (Cth) ss 9, 1325, 1317HA Evidence Act 1995 (Cth) ss 136, 191 Fair Work Act 2009 (Cth) ss 348, 355, 417, 421, 513, 545, 546, 557 Workplace Relations Act 1996 (Cth) s 494(5)(b)
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 549 Australian Ophthalmic Supplies v McAlary Smith [2008] FCAFC 8; (2008) 165 FCR 560 BHP Group Limited v Impiombato [2021] FCAFC 93; (2021) 151 ASCR 634 Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 853; (2004) ATPR 42-014 Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division [2019] FWC 7850 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commission [2020] FWCFB 1099 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714; (1999) 94 IR 231 Dafallah v Fair Work Commission [2014] FCA 328; (2014) 225 FCR 559 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 DP World Sydney Ltd v Maritime Union of Australia (No 2) [2014] FCA 596; (2014) 318 ALR 22 DP World Sydney Ltd v Maritime Union of Australia (No 2) [2014] FCA 596; (2014) 318 ALR 22 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934; (2018) 280 IR 173 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Hutchison Ports Appeal) [2019] FCAFC 69 Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 I & L Securities Pty Limited v HTW Valuers [2002] HCA 41; (2002) 210 CLR 109 NW Frozen Foods v ACCC (1996) 71 FCR 285 Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348; (2021) 304 IR 280 Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451; (2019) 286 IR 52 Patrick Terminals Enterprise Agreement 2016: Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1647 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580 Qantas Airways Ltd v Transport Workers’ Union of Australia (No 2) [2011] FCA 816; (2011) 211 IR 119 Retail and Fast Food Workers Union Inc v Tantex Holdings Pty Ltd [2020] FCA 1258; (2020) 299 IR 56 Schanka v Employment National (Administration) Pty Limited (No 2) [2001] FCA 1623; (2001) 114 FCR 379 Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426; (2008) 177 IR 61
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment & Industrial Relations
Number of paragraphs:	173
Date of hearing:	30–31 August; 1 September; 6 October 2021
Counsel for the Applicants in NSD 596 of 2017:	Mr J Fernon SC with Ms V Bulut
Counsel for the Applicants in NSD 1594 of 2017:	Mr J Darams with Mr B Rauf
Solicitor for the Applicants in NSD 596 of 2017 and NSD 1594 of 2017:	Seyfarth Shaw Australia
Counsel for the Respondents in NSD 596 of 2017 and NSD 1594 of 2017:	Mr R Reitano
Solicitor for the Respondents in NSD 596 of 2017 and NSD 1594 of 2017:	Slater & Gordon Lawyers

ORDERS

		NSD 596 of 2017
BETWEEN:	PATRICK STEVEDORES HOLDINGS PTY LIMITED ABN 63 060 462 919 First Applicant ; PATRICK STEVEDORES OPERATIONS PTY LTD Second Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; MR PAUL MCALEER Second Respondent ; MR PAUL KEATING Third Respondent

order made by:	LEE J
DATE OF ORDER:	29 November 2021

THE COURT ORDERS THAT:

1. The parties file by 5pm on 7 December 2021 an agreed minute or competing minutes of order to reflect these reasons.

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

ORDERS

		NSD 1594 of 2017
BETWEEN:	QUBE LOGISTICS (NSW) PTY LTD ACN 123 022 588 First Applicant ; QUBE LOGISTICS (SB) PTY LTD ACN 003 307 310 Second Applicant ; QUBE LOGISTICS (RAIL) PTY LTD ACN 082 313 415 Third Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; MR PAUL MCALEER Second Respondent ; MR PAUL KEATING Third Respondent

order made by:	LEE J
DATE OF ORDER:	29 November 2021

THE COURT ORDERS THAT:

1. The parties file by 5pm on 7 December 2021 an agreed minute or competing minutes of order to reflect these reasons.

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

REASONS FOR JUDGMENT

LEE J:

A INTRODUCTION AND BACKGROUND

1 This is the fourth judgment arising out of this controversy.

2 The relevant facts are set out comprehensively in Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451; (2019) 286 IR 52 (Principal Judgment or PJ). These reasons assume a familiarity with the Principal Judgment, and will adopt its abbreviations.

3 In the Principal Judgment, I found that industrial action was...