Australian Building and Construction Commissioner v Australian Workers' Union

In the Federal Court of Australia, the Australian Building and Construction Commissioner brought proceedings against the Australian Workers' Union (AWU) and one of its officials, Mr Kelly, for breaches of industrial law. The Commissioner alleged that the respondents had contravened sections of the Fair Work Act 2009 and the Building and Construction Industry (Improving Productivity) Act 2016 by engaging in unlawful industrial action and requesting that an employer pay employees for periods of such action. The court was required to determine the appropriate pecuniary penalties to be imposed on the respondents, considering various factors including the seriousness of the contraventions, the respondents' contrition and remorse, their cooperation with the Commissioner, their culture of compliance, and their capacity to pay. The court also had to consider the relevance of prior contraventions of industrial law and the application of the course of conduct principle.

The court acknowledged that the respondents had demonstrated contrition and remorse by agreeing to pay substantial compensation to the affected employer, OneSteel. The Commissioner had accepted that this factor should be considered in assessing the penalties. The court found that the respondents had cooperated with the Commissioner by resolving questions of fault early in the proceedings, and that this cooperation should be recognised by a discount in the penalty. The court also noted that Mr Kelly had no prior history of contraventions of industrial legislation, which could be considered a mitigating factor. The court considered these factors along with the seriousness of the contraventions and the broader context of the case.

The court determined that the appropriate penalties should reflect the seriousness of the contraventions while also taking into account the mitigating factors presented. The court imposed penalties on the AWU and Mr Kelly, taking into consideration the contrition and remorse demonstrated by the respondents, their cooperation with the Commissioner, and the absence of prior contraventions by Mr Kelly. The court also ordered that the AWU pay compensation to OneSteel and that the penalties be paid to the Commonwealth within specified timeframes. The court made no order as to costs.

The orders of the court required the AWU to pay penalties for three specific contraventions, with each contravention attracting a penalty of $25,000 or $30,000, and Mr Kelly to pay penalties for three contraventions, each attracting a penalty of $2,700 or $1,600. The AWU was also required to pay compensation to OneSteel in the amount of $90,000. The penalties were to be paid within 28 days of the order, and the compensation within 60 days. The court made no order as to costs.