Australian Building and Construction Commissioner v Bray

Link copied
Case Copied 11 min read

FEDERAL CIRCUIT COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Bray [2021] FCCA 88

File number(s): BRG 864 of 2019
Judgment of: JUDGE JARRETT
Date of judgment: 25 January 2021
Catchwords:

INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – assessing penalty – admitted contravention.

INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – particular cases.

Legislation:

Acts Interpretation Act 1901 (Cth) s. 2B

Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss. 3(1), 5, 46, 81(1), 81(1)(a), 81(1)(c), 81(6)

Crimes Act 1914 (Cth) s. 4AA
Cases cited:

Australian Building and Construction Commissioner v CFMMEU [2020] FCA 549

CFMMEU v ABCC (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155

Commonwealth of Australia v Director of the FWBII (2015) 258 CLR 482

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798

Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338
Number of paragraphs: 26
Date of last submission/s: 16 July 2020
Date of hearing: By written submission
Place: Brisbane
Counsel for the Applicant: Mr Follett
Solicitor for the Applicant: MinterEllison
Counsel for the Respondents: Mr Massy
Solicitor for the Respondents: Hall Payne Lawyers

ORDERS

BRG 864 of 2019
BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant
AND:

JASON BRAY

First Respondent

VERLE WILLIAMS

Second Respondent

WILLIAM HUGHES (and others named in the Schedule)

Fourth Respondent

ORDER MADE BY:

JUDGE JARRETT

DATE OF ORDER:

25 JANUARY 2021

THE COURT DECLARES THAT:

1.Each of the respondents contravened s.46 of the Building and Construction Industry (Improving Productivity) Act 2006 (Cth) when on 11 September, 2018 they each engaged in unlawful industrial action at the FV1 – Stage 2 Project located at Brunswick Street, Fortitude Valley, by leaving the Project site at about 6.45am and failing to return for the remainder of that day, thereby failing or refusing to perform any work at all for the remainder of that day.

THE COURT ORDERS THAT:

2.Each respondent pay a pecuniary penalty of $1,750 in respect of their contravention of s.46 of the Building and Construction Industry (Improving Productivity) Act 2006 (Cth) the subject of declaration 1 hereof.

3.The pecuniary penalties referred to in order 2 above are to be paid to the Commonwealth of Australia within 28 days of the date of these orders.

4.There be no order as to costs.

REASONS FOR JUDGMENT

JUDGE JARRETT:

  1. On 17 July, 2019 the applicant filed an originating application and statement of claim in the Federal Court of Australia seeking declarations and pecuniary penalties against 66 respondents. The claim alleges that the respondents variously organised or engaged in unlawful industrial action in contravention of s.46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). On 3 October, 2019 the Federal Court ordered that the proceeding be remitted to this Court. The proceeding remains on foot as against 64 of the original 66 respondents.

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Australian Building and Construction Commissioner v Bray and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] FCCA 88
Decision Date

CaseChat Overview and Summary

In *Australian Building and Construction Commissioner v Bray*, Judge Jarrett of the Federal Court of Australia considered contraventions of section 46 of the *Building and Construction Industry (Improving Productivity) Act 2006* (Cth). The Australian Building and Construction Commissioner brought proceedings against numerous respondents, who were employees of sub-contractors on the FV1-Stage 2 Project. The dispute arose from the respondents leaving the project site on 11 September 2018 and failing to return for the remainder of the day, which was admitted to constitute unlawful industrial action.

The primary legal issue before the Court was the appropriate assessment of pecuniary penalties for each respondent's contravention of section 46. The Court was required to determine the amount of the penalty, taking into account the matters specified in section 81(6) of the Act, including the nature and extent of the contravention, the circumstances in which it occurred, and any prior contraventions. The Court also considered the overarching objects of the Act, which include promoting respect for the rule of law and ensuring accountability for unlawful conduct within the building industry.

Judge Jarrett reasoned that while the contravention was objectively serious, it fell at the lower end of the scale of gravity. The Court noted that section 46 is a "Grade A civil remedy provision," carrying a maximum penalty of 200 penalty units for individuals, which equated to $42,000 at the time of the conduct. However, the Court emphasised the need for penalties to act as a deterrent, particularly in cases involving multiple individual respondents engaging in short periods of unlawful action. Despite acknowledging that specific deterrence was limited for first-time offenders, the Court found that general deterrence remained important. Applying these considerations, the Court fixed a pecuniary penalty of $1,750 for each respondent.

The Court declared that each respondent had contravened section 46 of the Act by engaging in unlawful industrial action on 11 September 2018. Consequently, the Court ordered each respondent to pay a pecuniary penalty of $1,750 to the Commonwealth within 28 days. There were no orders as to costs.

Orders

Orders of the court

THE COURT DECLARES THAT:

1. Each of the respondents contravened s.46 of the Building and Construction Industry (Improving Productivity) Act 2006 (Cth) when on 11 September, 2018 they each engaged in unlawful industrial action at the FV1 – Stage 2 Project located at Brunswick Street, Fortitude Valley, by leaving the Project site at about 6.45am and failing to return for the remainder of that day, thereby failing or refusing to perform any work at all for the remainder of that day.

THE COURT ORDERS THAT:

2. Each respondent pay a pecuniary penalty of $1,750 in respect of their contravention of s.46 of the Building and Construction Industry (Improving Productivity) Act 2006 (Cth) the subject of declaration 1 hereof.

3. The pecuniary penalties referred to in order 2 above are to be paid to the Commonwealth of Australia within 28 days of the date of these orders.

4. There be no order as to costs.

Background

Background to the litigation

The applicant seeks declarations recording the admitted contraventions of the Act. The respondents accept the declaratory orders of the type sought by the applicant should be made and that a pecuniary penalty should be imposed against them. I accept that it is appropriate to make the declaration sought by the applicant in this case.BACKGROUND Icon Co (Qld) Pty Ltd was the principal contractor for the building project described as FV1-Stage 2 Project at 191-211 Brunswick Street, Fortitude Valley. The project involved the construction of around 267 residential apartments and 50 short-term residential units. Each of the respondents was an employee of the various sub-contractors engaged by the principal contractor at the Project. Between about 6.30am and 6.45am on 11 September, 2018 each of the respondents participated in a meeting at the project site held by two representatives of the Construction, Forestry, Maritime, Mining and Energy Union. During that meeting, various participants discussed certain concerns, namely:(a)the taking down of union flags;(b)the presence of people working at the project site on rostered days off;(c)the Project Safety Officer taking photos of workers involved in safety incidents; and(d)personality clashes between some workers and the Project Safety Officer. It is agreed that at the conclusion of the meeting the respondents left the site and did not perform any work for the day. It is agreed between the parties that in doing so, the respondents engaged in unlawful industrial action in contravention of s.46 of the Building and Construction Industry Act. However, work resumed as normal on 12 September, 2018. There is no dispute between the parties that the respondents were building employees whose employment consisted of, or included, building work within the meaning of those terms in s.5 of the Building and Construction Industry Act.PECUNIARY PENALTIES Section 81(6) of the Building and Construction Industry Act provides that:In determining a pecuniary penalty under paragraph (1)(a), the court must take into account all relevant matters, including:(a) the nature and extent of the contravention; and(b) the nature and extent of any loss or damage suffered because of the contravention; and(c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct. Self-evidently, this is an inclusive list rather than an exhaustive list. In their useful written submissions, the parties have identified the matters relevant to the fixing of a penalty for each respondent in the present case. I will address the matters identified by the parties seriatim. In my view, there are no additional matters to be considered. Under the Act, civil remedy provisions are either “Grade A civil remedy provisions” or “Grade B civil remedy provisions”. Section 46 is a “Grade A civil remedy provision”. The maximum penalty for a “Grade A civil remedy provision” is 1,000 penalty units for bodies corporate and 200 penalty units otherwise. The term “penalty unit” is not defined in the Building and Construction Industry Act. Pursuant to s.2B of the Acts Interpretation Act 1901 (Cth), it is taken to have the meaning given by s.4AA of the Crimes Act 1914 (Cth). At the time of the contravening conduct in this case the value of a penalty unit was $210. Accordingly, the maximum penalty that might be imposed upon each respondent for their contravention currently under consideration is $42,000.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The penalty in this case must be set at a level such that it would be likely to act as a deterrent in preventing similar contraventions by like-minded persons. I accept that this is especially important in cases of this type involving large numbers of individual respondents engaging in relatively short periods of unlawful industrial action. In that respect, it is relevant to record that each of the respondents are natural persons and wage earners in the construction industry. Although, I accept the respondents’ submission that in circumstances where this is a first contravention for all of these respondents the need for specific deterrence is limited, it is not the case that the need for specific deterrence is entirely absent.CONCLUSION Fixing a penalty in this case requires the Court to ensure that the relevant purposes of the Building and Construction Industry Act are met. The main object of the Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively: s.3(1) of the Act. That objective is achieved by, amongst other things, promoting respect for the rule of law, ensuring respect for the rights of building industry participants and ensuring that building industry participants are accountable for their unlawful conduct. The penalty must be fixed such that it is proportionate to the gravity of the contravening conduct. I have described conduct above. Whilst it is objectively serious it falls at the lower end of the scale. Having regard to the matters I have referred to above, I fix a penalty for each respondent in respect of the single contravention of s.46 of the Building and Construction Industry Act committed on 11 September, 2018 of $1,750. It is appropriate to order that the penalties be paid to the Commonwealth.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.