Australian Building and Construction Commissioner v Anderson
[2022] FedCFamC2G 712
Federal Circuit and Family Court of Australia
(DIVISION 2)
Australian Building and Construction Commissioner v Anderson [2022] FedCFamC2G 712
File number(s): BRG 9 of 2022 Judgment of: JUDGE VASTA Date of judgment: 1 September 2022 Catchwords: INDUSTRIAL LAW – penalty hearing – agreed penalties ordered Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth): s 7, s 8, s 46
Fair Work Act 2009 (Cth): s 408, s 414
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 25 May 2022 Date of hearing: In Chambers Place: Brisbane Counsel for the Applicant: Ms Freeman Solicitor for the Applicant: Clayton Utz Counsel for the Respondents: Mr Clift Solicitor for the Respondents: Hall Payne Lawyers ORDERS
BRG 9 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: PETER ANDERSON
First Respondent
JASON D DANCE
Second Respondent
JAMIE LABRAM (and others named in the Schedule)
Third Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
1 Septmeber 2022
THE COURT DECLARES THAT:
A. Each of the respondents contravened section 46 of the Building and Construction Industry (Improving Productivity) Act 2006 (Cth) (BCIIP Act) when on 8 June 2021, they each engaged in unlawful industrial action at the Queen Street Village Project located at the corner of Queen Street and Nerang Street, at Southport in the State of Queensland (the Project), by leaving the Project and failing to return and perform building work at the Project and being absent from the Project for the remainder of the day.
THE COURT ORDERS THAT:
1.Each Respondent pay a pecuniary penalty of $5,500 in respect of their contravention of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth).
2.The pecuniary penalties referred to in order 2 above are to be paid to the Commonwealth of Australia within 28 Days.
3.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
Introduction
On 10 January 2022, the Applicant, Australian Building and Construction Commissioner, filed an application in this Court seeking declarations and pecuniary penalties against the seven Respondents for contraventions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (“BCIIP Act”).
On 7 April 2022, the seven Respondents, Peter Anderson, Jason Dance, Jamie Labram, Andrew Mason, Clinton Conroy, Trevor Dawson and Wayne Schofield, admitted that they had contravened that Act.
This Court has now been asked to impose pecuniary penalties on the seven Respondents.
Factual matrix
Hutchinson Builders were engaged by Property Solutions Pty Ltd to build part of the Queen Street Village which was to be constructed on the site of the old Gold Coast Hospital in Southport. Specifically, Hutchinson was to build a supermarket, cinema, child care centre, car park, a new medical centre and 47 shops.
This meant that there were approximately 200 workers engaged to perform building work at this project at the material times.
The seven Respondents were all full-time employees of Hutchinson; the First, Second, Third and Fourth Respondents were performing general labouring work whilst the Fifth, Sixth and Seventh Respondents were working on the crane crew.
On 8 June 2021, each of the seven Respondents were scheduled, and therefore required to attend at the project, and perform building work, commencing around 6 AM. On that day, the First Respondent signed in to the daily pre-start meeting at 6:22 AM, the Second Respondent signed in at 6:33 AM and the Fourth Respondent signed in at 6:32 AM. The other four Respondents were at the project that day but did not sign into the pre-start meeting.
That morning, a meeting was conducted in the main lunchroom at the project by Luke Gibson, who is an organiser with the Construction, Forestry, Maritime, Mining and Energy Union (“CFMMEU”). This meeting was attended by workers who were scheduled to be working on the project that day.
Following the meeting, a number of workers at the project, including the seven Respondents, left the project and failed to return to perform building work. They were absent from the project for the remainder of the day.
The site manager for Hutchinson, Frank Caione, spoke with Mr Gibson and asked him what was “going on”. Mr Gibson replied by saying “you tell me Frank; I got told lies from your Tweed branch”. Mr Gibson also spoke to Mr Caione claiming that he had issues regarding: sham contracting, whether lot 9 of the project should be EBA, contractors working for contractors, permanent and casual workers, and the fact that the project was well over $50 million.
As previously noted, the seven Respondents left the project on the morning of 8 June 2021 and failed to return and perform building work at the project that day. Hutchinson did not give any of those Respondents permission to leave the project and not return. Hutchinson did not give permission for any of the Respondents to not perform building work at the project that day nor did Hutchinson give permission to any of the seven Respondents to not attend at the project that day.
There were no safety issues raised by any of the workers, or any representatives of the CFMMEU on behalf the workers with Hutchinson, and there was no reasonable concern of any of the Respondents about any imminent risk to their health or safety arising from work on the project.
The project remained open for all of 8 June 2021 but the only building work that was performed that day was conducted by plumbers and sprinkler fitters.
Contraventions
By engaging in this conduct, each of the seven Respondents engaged in “industrial action” within the meaning of s 7 of the BCIIP Act by attending the project and then leaving and failing to perform any building work. This conduct was not authorised or agreed to by Hutchinson nor was it action based on a reasonable concern about an imminent risk to the health or safety of any of the seven Respondents.
The industrial action was not taken for, or in relation to, a proposed enterprise agreement. It was not authorised by a protected action ballot order and it was not the subject of a written notice pursuant to s 414 of the Fair Work Act 2009 (Cth) (“the FW Act”). This industrial action was capable of affecting the activities, functions, relationships or business of Hutchinson in that the industrial action disrupted building work being performed at the project on 8 June 2021.
This means that the industrial action was not “protected industrial action” as that term is understood in s 408 of the FW Act or s 8 of the BCIIP Act. This means that the action engaged by each of the seven Respondents amounted to “unlawful industrial action” and thereby contravened s 46 of the BCIIP Act.
Pecuniary penalties
The law in relation to assessment of pecuniary penalties has really been laid down quite comprehensively. The High Court, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, said, at paragraph 116 of that judgment:
As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty's general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition.
The High Court reaffirmed that principle very recently in the matter of Australian Building and Construction Commissioner v Pattinson [2022] HCA 13. The High Court said, at paragraph 46:
[46]It is important to recall that an “appropriate” penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. …
[47]The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors … where those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.
[48]It is not necessary to multiply examples further. It is sufficient to say that a court empowered by section 546 to impose an “appropriate” penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act.
In Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7, which is known as the Pangaea case, the Court went through, in effect, a number of factors the Court should be mindful of when imposing pecuniary penalties. One must be careful, though, in looking at the Pangaea case (Supra), that one does not simply look at those matters as some form of checklist to see whether or not the facts of the case with the particular factors either aggravate or mitigate the penalty. As such, the list compiled in Pangaea (Supra) is extremely useful, but it should not be a formula used by the Court to slavishly come up with some sort of almost mathematical guide for the imposition of penalties.
The maximum penalty for a contravention of s 46 of the BCIIP Act is 1000 penalty units for bodies corporate and 200 penalty units otherwise. This means that each of these seven Respondents is liable to a maximum penalty of $44,400.
Factors to take into consideration
The BCIIP Act actually provides that the Court must take into account all relevant matters including:-
·the nature and extent of the contravention;
·the nature and extent of any loss or damage suffered because of the contravention;
·the circumstances in which the contravention took place;
·whether the person has previously been found by a court (including a court in a foreign country) to have engaged in similar conduct.
The BCIIP Act differs from the FW Act which does not legislate the considerations that a Court must take into account. However, in practice, these considerations are considerations that the Court does look at in assessing contraventions of the FW Act because of what has been said in cases such as the Pangaea case.
Whilst it is trite to say that any “unlawful industrial action” is serious, what has occurred in this matter is not the most serious example of unlawful industrial action.
There is no evidence that there has been any financial loss or damage suffered by Hutchinson because of this unlawful industrial action. However, the unlawful industrial action meant that there was no work performed by these seven Respondents on that day. An inference that there was a loss of some sort to Hutchinson can easily be drawn. It is also obvious that the unlawful industrial action would have been frustrating to Hutchinson.
This was unlawful industrial action that followed a meeting in which the seven Respondents were spoken to by an organiser of a union that was entitled to represent their rights.
There is no evidence that any of the seven Respondents have previously contravened any industrial relations legislation in the past.
The seven Respondents admitted the liability when they filed their response in this matter. This was timely action that saved the parties and the Court both time and money. This cooperation also led to there being no need for a Court hearing with both parties been content to conduct the hearing “on the papers”.
But the overriding consideration for this Court is to deter. There must be specific deterrence for each of the seven Respondents so that they do not engage in similar conduct in the future, and there must be general deterrence such that any other like-minded individual would be deterred from behaving in a similar manner.
The Actual Penalty
The parties have agreed that an order requiring the seven Respondents to pay a pecuniary penalty of $5500 each is appropriate in the circumstances.
I concur with what the parties have agreed. I do not believe that anyone would be assisted by my further discussing the reasons why such a penalty is appropriate.
I have made orders in terms that have been sought.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 1 September 2022
SCHEDULE OF PARTIES
BRG 9 of 2022 Respondents
Fourth Respondent:
ANDREW MASON
Fifth Respondent:
CLINTON CONROY
Sixth Respondent:
TREVOR DAWSON
Seventh Respondent:
WAYNE W SCHOFIELD
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