Fair Work Ombudsman v Gill (Kwinana Bulk Jetty Case) (Penalty)

This matter comes from an industrial dispute at the Kwinana Bulk Jetty. The decision reported here is not the first judgment in the case. It is the penalty judgment delivered after the Court had already made findings on liability in an earlier proceeding.

In that earlier judgment, the Court found that on 24 August 2021 Mr Jason Gill threatened Mr Christopher Copperthwaite by saying, “You’ll end up dead dog if you keep going like this”. The Court found that the threat was made with the intent to coerce Mr Copperthwaite to take industrial action. The Court also found that the same conduct contravened three separate civil remedy provisions of the Fair Work Act 2009 (Cth).

According to the penalty reasons, the earlier findings were these. First, s 348 was contravened because the threat was said with intent to coerce Mr Copperthwaite to engage in industrial action. Second, s 346 was contravened because the conduct was adverse action taken against Mr Copperthwaite because he had not engaged in industrial action. Third, s 343 was contravened because the conduct was action intended to coerce Qube Ports Pty Ltd, his employer, to exercise a workplace right to participate in enterprise bargaining in a particular way.

The Court had already made declarations and ordered Mr Gill to pay Mr Copperthwaite $14,000 compensation. The remaining issue in this later judgment was whether a pecuniary penalty should also be imposed and, if so, how much.

Once liability had been established, the Court's task was to set an appropriate civil penalty under s 546 of the Fair Work Act. At the time of the threat, the maximum penalty for each contravention was $13,320. The Court therefore had to decide where, within that range, the penalty should fall.

The Fair Work Ombudsman argued that the conduct was so serious that the penalty should be at or near the maximum. Mr Gill argued for a lower figure. He relied on matters such as his long work history without prior industrial law contraventions, the embarrassment and hardship he said he had suffered as a result of the proceedings and publicity, and his evidence that he was committed to complying with the law in future.

The Court also had to deal with an important overlap issue. Because the same threat had already been found to contravene ss 343, 346 and 348, s 556 of the Fair Work Act meant that if a pecuniary penalty was imposed under one of those sections for that conduct, Mr Gill would not also be liable to pay penalties under the others for the same conduct. The parties agreed that only one penalty should be imposed. The Fair Work Ombudsman submitted that s 348 should be treated as the lead contravention, and the Court accepted that approach.

The judgment then worked through the usual civil penalty considerations. These included the nature and extent of the conduct, the loss or damage caused, the circumstances in which the conduct occurred, whether there was deliberateness or premeditation, whether there was contrition, whether there had been prior contraventions, and the need for specific and general deterrence.

The Court treated the threat as unquestionably very serious. It accepted the Ombudsman's submission that the words conveyed that if Mr Copperthwaite continued to cross the picket line and not take industrial action, he would end up dead. That meaning was central to the Court's assessment of seriousness.

But the Court did not look only at the words in isolation. It also placed strong weight on the environment in which the threat was made. The reasons refer back to findings in the liability judgment that the threat was made in the dark, while Mr Copperthwaite was surrounded by picketers who had yelled words like “scab”, “dog” and “I know where you live” in his direction. The Court described this as an intimidatory environment.

The Court also noted that the threat was directed at a fellow employee who would risk having to confront Mr Gill again in a work context. That feature mattered because it increased the practical pressure and fear associated with the conduct. The Court therefore assessed the contravening conduct as very serious not only because of the threat itself, but because of the setting, the confrontation and the ongoing workplace relationship between the people involved.

The Ombudsman also argued that the conduct involved forethought and premeditation. Two points were raised. One was an argument that Mr Gill had positioned himself in the dark and outside the clear line of CCTV. The Court did not accept that submission. Referring back to findings in the liability judgment, it was not satisfied that Mr Gill had deliberately taken himself outside the line of the CCTV camera to commit the contravention.

The second point was an email sent about a month earlier referring to a “trailer load of broken bricks”. The Ombudsman argued that this showed some form of premeditation or a propensity towards extreme behaviour. The Court did not accept that the email established the level of premeditation contended for. It relied on findings from the liability judgment that there was at least some doubt about what Mr Gill intended by the email and that the tone of the whole message detracted from the menace suggested. The Court also considered the month between the email and the threat significant, saying that period undermined the premeditation submission.

On harm, the Court accepted that the effect on Mr Copperthwaite was significant. The reasons record the Ombudsman's submission, which the Court accepted, that the threat preoccupied his mind and disrupted his family life and sleep, and that he still had panic attacks in dark areas and sleep issues due to the threat. The Court gave that evidence weight when deciding the appropriate penalty.

At the same time, the Court noted two qualifications. First, in the earlier liability judgment it had already recognised the difficulty of isolating the loss caused by Mr Gill's conduct alone from the conduct of other picketers and other events around the picket. Second, the Court had already found that Mr Copperthwaite had not suffered a diagnosed psychological injury. Those matters had informed the earlier compensation award of $14,000.

The existing compensation order also mattered at the penalty stage. The Court accepted that payment of compensation can be a potentially mitigating consideration when setting a civil penalty. In other words, compensation did not erase the seriousness of the conduct, but it was relevant to the overall assessment.

On contrition, the Court was not persuaded that Mr Gill had shown remorse for the contravening conduct. His affidavit said he was disappointed by the liability findings, embarrassed by them, and committed to complying with the law in future. He also gave evidence about the distress, publicity and employment consequences he had experienced. However, he accepted at the hearing that he did not express remorse in his affidavit. The Court therefore found that he had not shown contrition. Importantly, the Court treated that not as an aggravating factor, but as the absence of a mitigating one.

The Court did accept some matters in Mr Gill's favour. He had worked in the mining and maritime industry for four decades and had no prior industrial law contraventions. There had also been no recurrence in the four years since the conduct. The Court was satisfied that the contravening conduct was a one-off. It also accepted that his embarrassment, hardship and stated future commitment to compliance reduced the need for specific deterrence to some extent.

Even so, the Court held that specific deterrence remained high, given the seriousness of the conduct and the lack of contrition. It also held that general deterrence was high. The Court said the need to ensure threats of this gravity do not occur should be given significant weight.

The Court imposed a pecuniary penalty of $9,324 on Mr Gill for his contravention of s 348 of the Fair Work Act. It ordered that the penalty be paid to the Commonwealth of Australia within 28 days. The Court said that amount represented 70% of the applicable maximum penalty of $13,320.

In fixing that amount, the Court applied the established civil penalty approach focused on deterrence. It referred to High Court authority that a penalty should be no more than reasonably necessary to deter further contraventions of a like kind by the contravenor or others, and that it should not be treated as an acceptable cost of doing business. It also noted that there should be a reasonable relationship between the theoretical maximum and the final penalty imposed.

The Court concluded that a penalty at the high end of the range was appropriate. It took particular account of the seriousness of the conduct and the need for both specific and general deterrence. Although there were some matters in Mr Gill's favour, including no prior contraventions and no recurrence, those matters did not outweigh the gravity of the threat and the intimidatory circumstances in which it was made.

Because the same conduct had also been found to contravene ss 343 and 346, s 556 meant that only one pecuniary penalty could be imposed. The Court therefore imposed the single penalty under s 348 as the lead contravention.

This case is a reminder that industrial conflict can create legal exposure well beyond ordinary misconduct management. A threat made in connection with industrial action may be analysed through several Fair Work Act lenses at once, including coercion, adverse action and bargaining-related pressure. Even if only one pecuniary penalty is ultimately imposed for the same conduct, the incident can still lead to declarations, compensation and a substantial public penalty judgment.

For employers, the practical lesson is to respond quickly and carefully when threats or intimidation are reported during bargaining, picketing or industrial action. The exact words used matter. So do the surrounding circumstances, including whether the conduct happened in a crowd, at night, at close range, or in a setting that would make the target feel trapped or vulnerable. Evidence such as CCTV, site access records, witness statements and contemporaneous notes can become critical later.

The case also shows that courts pay close attention to the effect on the person targeted. Distress, sleep disruption and ongoing fear can all be relevant, even where there is no diagnosed psychological injury. Businesses should therefore support the affected worker promptly, document welfare steps taken, and avoid treating the issue as a mere personality clash or heat-of-the-moment exchange.

If disciplinary action is being considered, employers should also remember that industrial settings are legally sensitive. The same facts may raise Fair Work, safety, employee relations and procedural fairness issues at once. Early legal advice can help separate those issues and reduce the risk of compounding the problem.

Does this case mean every heated statement during industrial action will lead to a penalty? No. This judgment turned on a very serious threat and the intimidatory circumstances in which it was made. But it does show that courts will treat threatening conduct seriously where it is connected to industrial pressure.

Does it matter that the conduct came from an individual rather than the employer? Yes, but not in a way that removes risk. This case involved a penalty against an individual. For employers, that still matters because the incident can affect site safety, employee welfare, industrial relations strategy and evidence preservation.

Can one incident breach more than one Fair Work Act provision? Yes. The Court found that the same threat engaged ss 343, 346 and 348. Even though only one pecuniary penalty could be imposed for the same conduct, the overlap still shaped the legal analysis and the seriousness of the matter.

What should be documented first? Record the words used as precisely as possible, identify who was present, preserve CCTV and access records, note the time and location, and document the immediate impact on the affected worker. Those details can matter greatly if the matter later reaches the Fair Work Ombudsman or the Court.