Construction, Forestry, Mining and Energy Union & Ors v Australian Building and Construction Commissioner [2017] HCATrans 190 (15 September 2017)

Last Updated: 21 September 2017

[2017] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P15 of 2017

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Applicant

MICHAEL BUCHAN

Second Applicant

JOSEPH McDONALD

Third Applicant

WALTER (VINNIE) MOLINA

Fourth Applicant

PETER JOSHUA

Fifth Applicant

CAMPBELL McCULLOUGH

Sixth Applicant

TAWA HARRIS

Seventh Applicant

and

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 SEPTEMBER 2017, AT 9.51 AM

Copyright in the High Court of Australia

____________________

MS R.M. DOYLE, SC: If the Court pleases, I appear with my learned friend, MS J.D. WATSON, for the applicants. (instructed by Construction, Forestry, Mining & Energy Union)

MR N.J. WILLIAMS, SC: May it please the Court, I appear with MS C.G. WINNETT, for the respondent. (instructed by K&L Gates)

GAGELER J: Yes, Ms Doyle.

MS DOYLE: If the Court pleases, the applicants advance three principal grounds in this special leave application. The first pertains to the elements of the contravention and factors in mitigation; the second, to the question of evidence of quantifiable loss with respect to the question of mitigation; and the third is the sentencing principle, course of conduct.

I will turn to the first ground, your Honours. The question which arises here is whether the purpose or motive for which the contravening conduct in issue here was committed is when such a motive or purpose is relevant to the imposition of a sentence in the context of factors in mitigation.

Here the gravamen of the contravention was to bring about compliance with a lawful request and, in those circumstances, the majority of the Full Court held that (a) because this species of coercion as defined in the Fair Work Act involved making a lawful demand, which the admitted facts disclosed was a demand that workers be paid back pay for which they had been waiting for some weeks; (b) continued, the majority in the Full Court, an element of the contravention, therefore, was that there was a lawful demand that was made.

Their Honours in the majority said that the primary judge had erred in treating the lawfulness of the respondent below’s request, namely, demand that the workers receive the back pay, as a mitigating factor because it was an element of the offence. Their Honours based that conclusion, or expressed their conclusion, on the basis that section 348 of the Fair Work Act prohibits coercion equally with respect to lawful and unlawful demands and that the same maxima applies with respect to either offence.

Now, our response to those issues is as follows, your Honours. First, the trial judge below, Justice Siopis, did not take into account an element of the offence as a factor in mitigation.

GAGELER J: Well, that is taking Justice North’s view, is it?

MS DOYLE: It is, although we put it differently, with respect. When one traverses the trial judge’s reasons, what his Honour took into account was not the fact that the union was seeking to coerce compliance with a lawful request for wages but, rather, that the union’s purpose, in the sense of motive in making that demand, was motivated by an altruistic rather than a base or capricious motive – in other words, motivated by, as the admitted facts disclosed, a reasonable belief that the employees had not been paid and the surrounding circumstance that they were as a result in financial distress.

Now, the second point we make is that there was no double counting by the primary judge. His Honour did not, for example, purport to apply one discount for lawfulness and then a second discount by virtue of the benign nature of the request.

Thirdly, we say it is in fact their Honours the majority in the Appeal Court who erred because their Honours, Justices Dowsett and Rares in fact conflated, wrongly we say, the lawfulness of the request which preceded the blockade, which we accept is an element of the offending, with the purpose for which the demand was made. And, again, I am using the word “purpose” there in the sense of motive.

But the two concepts, with respect, are quite distinct because the question whether something is lawful or unlawful is an objective fact and a question of law. In contrast, the question of what constitutes the motive or the purpose of a contravener in any given fact is a matter susceptible to evidence and evidence of a particular kind, either evidence of a subjective state of mind or of surrounding circumstances which would tend to shed light on the state of mind of the actor.

The error into which their Honours in the majority on the Full Court fell was that they appeared to treat the question whether something is lawful or unlawful as if those two concepts were both the same as and synonyms for good and base motives. And when one goes back to the trial judge’s reasons, his Honour acknowledged the element of the offending, which was a lawful request was made, but his Honour’s attention was focused on what that revealed about the purpose and, in so doing, his Honour was only applying orthodox sentencing principles.

One always looks at the circumstances of the offending in order to place it on a scale of seriousness. And it is traditional in the criminal regime of course to use the language of moral culpability, but it has been long established equally in the industrial arena in the context of civil penalties that one would have regard to the reason for which a demand is made or labour is withdrawn or a blockade is effected.

Can I give an example that we propose draws this out, your Honours. The question whether a request is lawful and meets the descriptor in section 347 of the Fair Work Act of one species of industrial action or is unlawful, on the other hand, is not answered by interrogating the motive of the contravener at all. And here is the example we say that makes that good. It would constitute a contravention of section 348 of the Act to engage in a blockade with the intention of coercing an employer to accede to a lawful demand that all cranes that come onto this site should meet certain safety standards. That is a lawful demand. If the motive for making that demand were either admitted in a set of agreed facts or otherwise demonstrated by admissible evidence to be the safety of workers on that site, that would be found to constitute an altruistic or at least benign purpose, such that the seriousness of that contravention would be at the lower end of the scale.

In contrast, your Honours, if the evidence was the same – the demand is lawful, these cranes must meet the safety criteria to come on here, but the evidence disclosed a capricious or base motive, namely, the union official in question had had, for example, a personal spat with the director of the company undertaking the building works and it was able to be demonstrated that this was a capricious demand made to effect some other personal design, then the court imposing the sentence would be justified in placing that contravention, although it was equally with respect to a lawful demand, at the higher end on the continuum of seriousness by reason of the fact that it was capricious, arbitrary and not otherwise shown to be altruistic or benign in purpose.

GAGELER J: Well, Justice North, at page 62 of the application book, and I think at paragraph 47, in the first sentence, says:

It would, of course, have been an error for the primary judge to have treated the lawfulness of the request as itself a reason for viewing the contraventions as less serious.

I take it that you accept that proposition.

MS DOYLE: Cautiously, your Honour, on this basis. We see that our friend’s attempt to advance against us an argument based on aggravation, drawn from a specific provision in the New South Wales Act 21A(2), and we do note that there is no cognate provision in that Act with respect to mitigation and elements of the offence.

We would, with respect, say that Justice North – perhaps the principle might be lawfully stated this way: one is always liable to fall into error when imposing a sentence if one double counts any factor in aggravation or mitigation and if one were proceeding under the New South Wales Act there is an express prohibition on counting as a factor by way of aggregation any element of the offence.

But no such prohibition appears in the Fair Work Act either way, with respect to aggravation or mitigation. And if all his Honour Justice North is saying there is that, in this case in all the circumstances, his Honour would have erred insofar as the primary judge treated lawfulness in and of itself as a reason for characterising the seriousness down the low end, we do accept that. We are not sure that it goes any further.

GAGELER J: Well, accepting that it does not go any further, I wonder if this point is really just a difference between you and Justice North on the one hand, with slight nuances, and the majority in the Full Court on the other hand in characterising what the primary judge actually did in the circumstances. I am having difficulty seeing that there is any greater question of principle than that.

MS DOYLE: It perhaps emerges most crisply from what their Honours in the majority say at paragraph 74 in their Honours’ reasons, which is page 71 in the application book. And the error, we say, in the first sentence there is stark. Their Honours said:

the respondents’ motivation for organising and participating in the blockade could not be a mitigating factor and should have been treated as irrelevant –

so not given less weight or not given less weight in this case:

to the primary judge’s consideration of the appropriate penalties.

And our submission is as bold on this on that point, your Honour. That is contrary to orthodoxy in sentencing and in imposition of civil penalties. The consumer protection regime is replete with application of the orthodox “check-a-box list” if you like, which includes seriousness of the contravention where motive and purpose, and of course impact on victims or putative victims is always relevant. That is quite a startling proposition, in our submission, and it is what has inspired the focus on that aspect of this ground.

I will move to the second ground, your Honours, which is quantifiable loss. The special leave point that we propound here is that, where an agreed statement of facts – and your Honours will understand the context here – one which was proffered as a package to him, if you like, with admissions to contraventions of the Act - where an agreed statement of facts does not address and no evidence is adduced of quantifiable economic loss as the result of a disruption to work the question is: is it open, as their Honours in the majority on the appeal found, to infer substantive economic loss for the purpose of assessing the seriousness of the contravention?

So we are in the heartland of seriousness again but this time looking at the effect on the victim, if I can put it that way. The agreed facts here disclosed – and it was admitted – that there had been a three and a half hour disruption to work. But, critically, the agreed facts did not include any fact directed to whether they had sounded in ascertainable, crystallised or quantifiable loss. Now, one does see statements of agreed facts in this jurisdiction which do so, and one sees evidence adduced which proves so. One might see, for example, proof that a concrete pour was interrupted which sounded in a loss of $10,000 worth of product which was spoiled.

Now, his Honour the learned trial judge treated the absence of evidence of quantifiable loss as a mitigating factor, in his reasons at paragraphs 77 to 78. And your Honours will be aware that there is a line of decisions, going back to the consumer protection regime analogy I raised a moment ago, where it has been held and it has been noted that, particularly in cases where it is easy to imagine what sort of detriment might have befallen consumers but where the agreed facts and the evidence do not advance any evidence on that point, it has been held by a number of single Judges of this Court that if harm is likely to have been suffered but no evidence of that harm is adduced, then the respondent is entitled to be sentenced on the basis the conduct has not caused any quantifiable harm and that, therefore, it translates to being a mitigating circumstance.

Now, what their Honours did on appeal was say, well, it was not an admitted fact and there is no evidence to which we can turn. But their Honours said they were able to, nevertheless, assume – this is principally at their Honours’ reasons at paragraph 80 – that it is obvious that:

Where a major building site is blockaded so that work cannot be performed, substantive economic loss to someone is an inevitable consequence.

With respect, again, we submit that is wrong and cannot be assumed.

GAGELER J: I am not sure it is fair to say they assumed it. They, apparently, had some television footage before them. They say at paragraph 75 it was “a fine sunny day”.

MS DOYLE: Yes.

GAGELER J: And there were:

21 other businesses working at the site and between 145 and 160 employees –

MS DOYLE: Quite. But this was a large building project – I should go back a step. The footage, no doubt, underscored the disruption, but this was a large, complex building project with many subcontractors. And it is our submission that a court, first of all, ought not seek to fill the gaps. In the previous decisions which we have referred in our submissions it has been made clear when a court is faced even with what it regards as frustratingly deficient agreed facts, it ought not search for the answer elsewhere. It can stand the matter down. It can require or even demand provision of additional evidence on a topic, but what it ought not do, the cases say, is seek to fill the gap itself.

Now, what we say about a complex, large and long building project is this. The court proceeded to fill the gaps in the absence of evidence of the following types, the commercial arrangements between the builders and their subcontractors. There is, to be frank, your Honours, a lot of fat in the building programs on large contracts of this type and it may have been – one does not know because the statement of agreed facts did not disclose – that a 3.5 hour stoppage in a project set to endure months had no discernable economic impact on anyone.

The other thing one did not know and the Bench did not know was whether there was alternative work available on other nearby sites, other than make work – I would accept that that might still sound in a loss – for the affected workers. One did not know and we do not know what the nature of the works were that were planned to be performed on that day. In cases where a concrete pour is interrupted, that is typically the most expensive form of a disruption. If it was a day on which a yard was going to be mucked out, if you like, or steel girders were going to be put away, it is much less likely to have had any particular impact.

We do not know whether the lost time was made up that very day, by workers staying back but not claiming overtime. We do not know whether the project was completed on time and, if it was not, to what cause that was put down. And we do not know whether anyone was the subject of a demand for a penalty, much less whether they paid one up for being late.

GAGELER J: Well, accepting we do not know all of those things, what justifies treating the absence of quantified economic loss as a mitigating factor?

MS DOYLE: The line of decisions to which I have referred put it in two ways. First of all, there is a distinction between detriment at large and, in this context, disruption. We are not cavilling with the fact that the video footage and the agreed facts establish a break in time, but that there is a gulf between that and whether it ever could sound in quantifiable loss. In the consumer protection regime that has been used as a springboard to make, we say, this astute observation. When the parties come to the Court, particularly with a deal embodied in the statement of agreed facts and it is silent on a topic with respect to which it would be relatively easy to have sought agreement on the fact – and one might think it was sought and refused – or to have adduced evidence of that fact, in this context an affidavit from a subcontractor, who says, “I lost 20 hours of pay that was useless because my workers had no alternative work to do”.

What is said by Justice Perram, for example, in one of the cases to which we have referred and others footnoted in footnote 32 of our submissions, is why would the court treat it as anything other than what it discloses. An absence of evidence on that topic, it being relatively easy to have filled and it not being filled for some unexplained but probably good reason, means that the respondents are entitled to have it treated as a factor in mitigation.

Conversely, if the evidence was that $1 million loss had been caused, that would be a serious offence. If the evidence was that $5,000 loss to a very small subcontractor had been caused that would see the nature of that offending run back down the end of the scale towards the less serious end.

In broad terms, your Honour, we say it is because the nature of the offending and the seriousness of the contravention is always relevant. That is traditional; that is trite. And that in circumstances where one might think, well, the economic loss is that one of the key items that might demonstrate the quality or level of seriousness, if it is an evidentiary blank in what universe would that be converted into a matter of aggravation rather as their Honours in the majority on the Appeal Court appeared to treat it by dint of some assumptions that their honours apparently felt entitled to make because it was obvious to them that a disruption converts to significant economic loss for someone.

We do cavil with that and it is clear from previous cases in which different amounts of loss suffered by dint of a strike or a blockade, for example, have been proven, contested, admitted and found. It just cannot be assumed, we say, in that context.

GAGELER J: I think you have got one more point.

MS DOYLE: We do. The third ground pertains to course of conduct. Their Honours in the majority on the appeal departed from the trial judge in a significant way. First of all, in a startling way with respect to the quantum, as your Honours will have seen, Justice Siopis found that because one blockade was organised here and it was clear that there was an interrelationship of fact and of motive as between the officials who organised it, his Honour the trial judge treated it as one contravention, relying on the traditional common law principle with respect to course of conduct.

His Honour did so, and I do not think the majority disputed that his Honour was entitled to do so, in circumstances where there is an express provision in this Act which says the following contraventions are susceptible to a single course of conduct analysis. But there is a long line of decisions in the Federal Court upholding the principle that, nevertheless, the common law one transactional course of conduct principle applies even to contraventions outside of that list. It does not appear that their Honours on appeal cavil with that. But, interestingly, what their Honours did say was – this appears in their reasons at 87 to 88 and 96 to 97 :

The coercion was the more forceful because it had more people involved.

In effect, their Honours said, the CFMEU enlisted each of the four agents in organising the demand that was made and the blockade that was effected. Then at 102 their Honours say:

The legislative purpose in the Act, of creating separate contraventions and imposing pecuniary penalties on organisations, such as the CFMEU . . . will not be served by equating multiple contraventions by a recidivist –

My time is up, your Honours, but I will finish my sentence by noting that in order to do a quick check on whether this $195,000 penalty imposed on the union in fact embodies an improper application of the course of conduct principle, one would have to check it against what would be the penalty imposed for a single contravention of section 348 of the Fair Work Act. And the second question one would ask oneself is: how could it be that four union officials, acting to effect the same blockade, have generated five contraventions by the union rather than a single course of conduct when a corporate actor cannot enlist agents. In fact, liability flows the other way. The corporate actor is vicariously responsible for their acts, which we submit constitute a course of conduct. If the Court pleases.

GAGELER J: Thank you, Ms Doyle. Mr Williams.

MR WILLIAMS: The applicant’s main point turns on the characterisation of the primary judge’s reasons and raises no point of principle. The primary judge’s reasons start in their key passages from page 17 of the book, in particular paragraph 40. The union:

had received reports that a number of employees of Concealed Interiors working on the project had been unpaid for six to eight weeks. It is an agreed fact that the CFMEU had reasonable belief that this may be the case.

In fact, I think the terms of the agreed fact were that the union had a reasonable belief that Concealed may have failed to pay some of its employees and subcontractors for some of the work performed on the site.

In paragraph 43 his Honour goes on that it “is an important mitigating factor in assessing the seriousness” that the conduct was directed at seeking to assist workers who the union believed had for some time not been paid.

Paragraph 76 is the key reasoning of the primary judge in this respect, upon which the Full Court focuses. That is on page 24 of the book. By paragraph 76 the rationale has become supporting:

employees who had not for some weeks been paid wages to which they were lawfully entitled.

His Honour then characterises in the second half of 76:

The legitimacy of this concern by the CFMEU, is recognised in the agreed facts by the –

reference to the request for payment as a “lawful request”. And it is this reasoning at paragraph 76 of the trial judge that the Full Court then focuses on, page 70 of the book, paragraphs 72 to 74. In paragraph 72 their Honours identify the elements of the various contraventions. And, at the foot of page 70, each of the relevant provisions “made the lawfulness” – going over the top of the following page:

or unlawfulness of the character of the particular activity irrelevant to the prohibition against coercion imposed by s 348.

Their Honours, in paragraph 73, refer to the:

lawfulness of a request . . . is an element of a contravention –

My friend has taken your Honours to the opening sentence at paragraph 74. But the crucial part is the second sentence. In arriving at the decision his Honour expressly took into account the lawfulness of the request that he characterised as the respondent’s motive.

So the key point is that the fact that the union’s request was lawful does not provide a legitimate rationale for blockading the site, in breach of the Act, or a matter properly going to mitigation. And it is this particular characterisation of the union’s motive that the Full Court rejects as irrelevant and that is clear from the top of the page, “lawfulness or unlawfulness”.

GAGELER J: I am just trying to understand paragraph 74. The “however” at the beginning of the second sentence, at least on a natural reading, suggests that the problem that their Honours saw was that his Honour, at first instance, violated the principle they had stated in the first sentence. Is that the way it should be read?

MR WILLIAMS: In context, with going through from 72, violated the principle identified at the top of the page, the double-counting principle, in effect.

NETTLE J: Mr Williams, however you describe it, whether in terms of unlawfulness or otherwise, the motive for the offence is a relevant sentencing consideration, surely? If it is done for benign or beneficent purpose one would ordinarily expect that it would attract a lesser penalty than an offence committed for greed or avarice or something else.

MR WILLIAMS: We do not read the majority as having held otherwise. Their Honours did identify purpose. For example, in paragraph 80 of the reasons their Honours identified “purpose” in terms.

GAGELER J: I am afraid our paragraph numbering has been - - -

NETTLE J: It is page 24 – page 73.

MR WILLIAMS: I am sorry, page 24, using the original pagination, and it is the first full paragraph on that page, commencing “Where a major building site is blockaded”.

GAGELER J: Thank you.

MR WILLIAMS: So that is one paragraph where their Honours directly went expressly to “purpose”. Paragraph 78, on the previous page, starting at about point 5 on the previous page, the paragraph beginning “In other words, the CFMEU . . . intended the blockade” so it is going to intention.

Paragraph 77 likewise, page 23 in the original pagination, deals with rationale. We take the majority to have regarded purpose, motive – whatever characterisation one uses among that continuum of purpose, motivation, rationale, their Honours have regarded that as relevant.

NETTLE J: I understand the purpose which really goes to the intention to commit the offence, but if the motive had been to get several thousand dollars paid into the President’s slush fund, it would surely be a worse offence than if the motive were to get what they thought were unpaid wages paid.

MR WILLIAMS: We accept that, but we do not take the majority to have held otherwise. The point of departure is in the majority’s characterisation of the particular reasoning of the primary judge, in effect, that the fact that a request is lawful does not itself provide a legitimate rationale for blockading a site or a matter properly going to mitigation. Also, paragraph 66 in the majority, in subparagraph (1) - this is at the top of page 20, the end of the first part paragraph on the top of page 20.

So we take their Honours to have been making a quite specific point about the primary judge’s reasoning, focusing upon paragraph 76, and not a general point that motivation, a base motivation, would be irrelevant. It is a question whether it is a matter to be taken into account in mitigation, as his Honour said, thus in our submission clearly violating the principles about taking into account in aggravation or mitigation of matters that are elements of the offence itself.

We refer to the authorities in that respect. They are mostly about aggravation, for forensic reasons, I suppose, but the same principle applies to taking into account in mitigation matters that are, in truth, an element of the contravention itself. And that is the narrow point we take their Honours to have been making in the passages at paragraphs 72 to 74 and that is supported by the fact that they themselves had regard to purpose and rationale in forming their view of the seriousness of the contravention.

So we would say the majority was correct to conclude that a characterisation of a request as lawful did not provide a legitimate rationale in circumstances where the penalty provision itself had lawfulness as an element. And, indeed, as we develop in the written response, the failure of the primary judge to take account of the need for deterrence of what were, in the case of some of the officials, serial recidivists and indeed of the union itself, provided an independent basis which is not challenged on the appeal, for the majority to find error and undertake resentencing. That is what we say in respect of the first point, although the point I have just made deals with all of the points that are made.

NETTLE J: They found manifest inadequacy so, I suppose, in a sense indiscretion was reopened, in any event.

MR WILLIAMS: Indeed.

NETTLE J: The only question then is whether they have erred in the respect that is alleged at 74 in failing to take into account a benign motive, as it were, in reduction of the penalty that would otherwise be applicable.

MR WILLIAMS: That would not merit a grant of special leave in circumstances where there is an independent ground for the appellate court to have intervened, in our submission.

NETTLE J: Yes.

MR WILLIAMS: As to the second point, there is no general principle that in a civil penalty case, absent quantification of economic loss, that such loss cannot be taken into account. We refer in our response to several cases that demonstrate this. But, at the level of principle, if it were otherwise in a case in which the regulator cannot quantify loss – and it is not a remote case in which the regulator who is not the employer will not be able to quantify loss because it will require substantial amounts of witness time from an employer to identify exactly what the losses were and how they are to be quantified - even in a case where the loss is obvious and large, it will not be able to be taken into account.

NETTLE J: What about Ms Doyle’s point that these are things that would not be done on the basis of a deal as to the facts and if the prosecuting authority wants to allege that there is loss, even if it cannot give evidence, it would make submissions that the Court ought draw inferences from such evidence as could be adduced.

MR WILLIAMS: Indeed, that is what the Full Court did. It did draw inferences from such evidence as was adduced.

NETTLE J: Was he invited to by the prosecutor?

MR WILLIAMS: I do not know the answer to that.

NETTLE J: I mean, it would be different, obviously, if the prosecutor said, you can infer, then fair enough. But, if the deal was hands-off, we just put this up without any reference to loss, it would be, perhaps, different.

MR WILLIAMS: Your Honour, I am not sure that any point is taken against us that there was a denial of procedural fairness in what the Full Court did. The Full Court has plainly relied upon evidence from which it drew its own inferences.

NETTLE J: Yes, quite.

MR WILLIAMS: The fact that it was not raining on the day and that there were upwards of 120 people – 145 people, perhaps, who were shut out of the site for three and a half hours, gave rise to a plain inference that there was loss. In some circumstances, that loss might have been quantified in different ways according to the critical path of the project and whether it started raining the next day and rained for three months or did not. But, questions of quantification of those kinds cannot be determinative of this sort of point. There was obviously loss. Over 100 people shut out for almost half a day equals loss, even if it is a big project and a big employer, then it is a significant – or, as the Full Court said – a substantive loss as in firmly based in reality, which, plainly, it was.

There could be no principle of this kind and, in truth, the cases – the consumer law cases – establish a narrower principle than that for which our friends contend; rather, that, in the absence of evidence of actual loss or damage, the absence of evidence can be weighed as a mitigating factor, but it is not relevant where there is some evidence of loss but there is no quantification. That is exactly how – at an intuitive level – one would express the principle – one would expect the principle to be expressed.

The third point about course of conduct – the Full Court did not approach the matter in the way for which the applicant contends. In paragraph 88 of its reasoning, the Court held – and this is uncontroversial – that:

s 557 did not cover the field and did not exclude the common law principle –

But, the Full Court then said no more than that the presence of section 557 showed that cases outside its scope were not necessarily intended to be treated leniently. So, in truth, the third point is a point about the way in which the Full Court applied the single course of conduct principle which does not raise a question of general or public importance. Your Honours, unless there are matters your Honours wish to raise, those are our submissions.

GAGELER J: Thank you, Mr Williams. Ms Doyle?

MS DOYLE: There are two matters by way of reply, if the Court pleases. The first is that when one goes back to their Honours in the majority, back to their Honours’ reasons at paragraphs 80 to 81, in the application book at page 73, your Honours were just teasing out a moment ago the question of what their Honours on appeal found with respect to purpose.

With respect, what is disclosed by their Honours’ remarks in paragraphs 80 and 81, is that their Honours are persisting in the same error that we have identified with respect to paragraph 74, namely, conflating the elements of the offence with the purpose for which – or motive for which – it is committed. Can I explain it in this way? What their Honours say in paragraphs 80 and 81 in the third sentence, thereof, is they – the union officials:

intended that their coercion would produce the result that someone would pay –

the employees. Then, in paragraph 81, go on to say this was reinforced by a threat. With respect, that is merely describing the offence of a contravention of coercion as defined by sections 347, read with 348 of the Act, namely, a lawful demand – give the workers their pay and then an “unless” element – namely, or we will blockade your site. That is the demand. That constitutes coercion.

All their Honours are doing there, with respect, is describing not merely even the elements of the offence but the offence, a lawful demand coupled with something that constitutes coercion – and here it is, or we will

put a picket on out the front and you will suffer some sort of disruption. When read in that way, in our submission, that does not cure the error that is evident in paragraph 74 of their Honours’ reasons which is that their Honours are conflating elements of the offence with motive and that, therefore, the correct way to read paragraph 74 is just as your Honour Justice Gageler has suggested, namely, that they stating that the trial judge erred insofar as he purported to take into account, motive as a factor in mitigation.

On the second point, your Honour Justice Nettle asked how things were put below. It does emerge, looking at the submissions put before his Honour the trial judge as long ago as 28 May 2015, that the regulator submitted on those penalty submissions in writing: the applicant does not submit that any quantifiable economic loss or damage was suffered as a result of the respondent’s contraventions, notwithstanding the lack of quantifiable loss as a result of the conduct of the respondents, the majority of the workers did not attend work for 3.5 hours.

In other words, the regulator, we would submit quite properly, confined themselves to a submission that emerged strictly from the agreed facts, namely, disruption, not loss. I am informed that, on appeal, this point was raised in oral submissions and that the then respondent’s counsel said it was not open to the court to find that there was substantial loss because there was no evidence of the same. That is as far as we have been able to find in the time available, but that also accords with my memory of how that matter unfolded. If the Court pleases.

GAGELER J: Thank you, Ms Doyle.

In this application we are not persuaded that it is sufficiently arguable that the majority in the Full Court erred in principle in the manner in which it identified error in the reasoning of the primary judge to warrant a grant of special leave to appeal. Special leave is refused.

MS DOYLE: The parties are agreed no order as to costs due to the provision – 570 of the Fair Work Act.

GAGELER J: Special leave to appeal is refused.

The Court will now adjourn to 10.15 am on Tuesday, 10 October in Canberra.

AT 10.32 AM THE MATTER WAS CONCLUDED