Australian Building and Construction Commissioner v Bray
[2021] FCCA 88
•25 JANUARY 2021
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:
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.
By way of their amended defence filed on 21 May, 2020 the respondents have admitted all allegations in the statement of claim, including that each respondent engaged in “unlawful industrial action” on Tuesday 11 September, 2018 in contravention of s.46 of the Act.
Subsection 81(1)(a) of the Building and Construction Industry Act permits a relevant court to impose a pecuniary penalty upon a person who has contravened a civil remedy provision of the Act. The Federal Circuit Court of Australia is a relevant court for the purposes of s.81(1) of the Act. The court may also make any other order it considers appropriate: s.81(1)(c) of the Act. Section 46 of the Building and Construction Industry Act is a civil remedy provision.
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.
The contraventions relate to events impacting the project and the project site on 11 September, 2018. The respondents engaged in unlawful industrial action by failing to perform any work after leaving the project site early on 11 September, 2018. The respondents did not return to the project site or resume performing building work on the project site that day. The parties agree that each respondent’s actions on 11 September, 2018 constitutes one contravention of the Act and should be treated as such.
By reason of the stoppage on 11 September, 2018, one day’s work was lost. There is no assertion that the unlawful industrial action was repeated during the balance of the project’s duration.
Whilst unlawful industrial action is an objectively serious contravention and should be penalised accordingly, the contravention in this case is, I accept, at the lower end of the scale in terms of objective seriousness.
There is no evidence of financial loss or damage suffered by the relevant building contractors engaged in work at the project site as a consequence of the unlawful industrial action on 11 September, 2018. However, the Court does not require evidence of economic loss in order to draw an inference that loss has been suffered: Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 at 345-6. An inference naturally arises that the consequences of the respondents’ industrial action was disruption, inconvenience and expense. However, unless there is further evidence led as to the extent of harm suffered, in terms of particular financial loss or damage, the Court should not assume that the harm disclosed was extensive: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798 at [68].
I accept the respondents’ submission that whilst it can be inferred in the present case that there may have been some loss from the unlawful industrial action that took place on 11 September, 2018, there is no evidence to suggest that the loss was extensive or ongoing.
There is nothing to suggest that any of the respondents have contravened industrial laws previously or that they have ever been found to have engaged in any similar conduct. Each of the respondents is entitled to be dealt with on the basis that this is their first offence.
The respondents have admitted liability in the proceedings prior to the trial. This has saved the parties and the Court the time, cost and effort associated with a contested trial. The respondents have co-operated by making admissions and agreeing to the allegations in the statement of claim, which includes the facts establishing the contraventions. The respondents have also agreed the process to be adopted for the determination of the matter as against them. The utility of that co-operation ought to be reflected in a discount in the penalty imposed for the contraventions. I have taken that into account.
Inferentially, these things might also indicate, that the respondents accept that their actions were unlawful. There has not, however, been any express statement of remorse or contrition by any of the respondents. The respondents have not apologised for their unlawful conduct. .
I do not accept that the respondents’ early admission of liability reflects contrition and remorse. It is nothing more than an acceptance of the inevitable finding that was likely to be made after a contested hearing. A discount is appropriate to take into account the early admissions of liability but the discount is not significant in the circumstances.
Deterrence, both specific and general, is the “principal and indeed only” objective of pecuniary penalties under the Building and Construction Industry Act: Commonwealth of Australia v Director of the FWBII (2015) 258 CLR 482 at 506 [55]; CFMMEU v ABCC (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 at 167 [19]; Australian Building and Construction Commissioner v CFMMEU [2020] FCA 549 at [26]. Retribution, denunciation and rehabilitation have no part to play.
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.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 25 January, 2021. Associate:
Dated: 25 January 2021
SCHEDULE OF PARTIES
BRG 864 of 2019 Respondents
Fifth Respondent
BRYCE HILL
Sixth Respondent
ANTHONY LEON
Seventh Respondent
ANTHONY MARIANETTI
Eighth Respondent
BENJAMIN WOLSTENCROFT
Ninth Respondent
CHRIS TREVOR
Tenth Respondent
CLINTON MATIU
Eleventh Respondent
DESMOND MOHI
Thirteenth Respondent
JAMES BROWN
Fourteenth Respondent
JAMES PERRY
Fifteenth Respondent
JOHN AWAI
Sixteenth Respondent
JORDAN IRWIN
Seventeenth Respondent
MARK COATES
Eighteenth Respondent
MATTHEW ELLIOTT
Nineteenth Respondent
MITCHELL PILLANS
Twentieth Respondent
PETER BOOKER
Twenty-First Respondent
RUSSELL NUGENT
Twenty-Second Respondent
SCOTT STEPHENS
Twenty-Third Respondent
SEAN MACRAE
Twenty-Fourth Respondent
SEBASTIAN DOHERTY
Twenty-Fifth Respondent
ZACKARIAH HIGGINS
Twenty-Sixth Respondent
DANIEL JAMESON
Twenty-Seventh Respondent
PHILIP LAMPRELL
Twenty-Eighth Respondent
SAMUEL SAWYERS
Twenty-Ninth Respondent
TRENT COOKE
Thirtieth Respondent
ANTHONY MACKINNON
Thirty-First Respondent
GRANT GILLS
Thirty-Second Respondent
SHAUN SMITH
Thirty-Third Respondent
JARROD BREMER
Thirty-Fourth Respondent
RYAN MCINERNEY
Thirty-Fifth Respondent
TIM BARRETT
Thirty-Sixth Respondent
STUART CHERRY
Thirty-Seventh Respondent
PETER CLARKSON
Thirty-Eighth Respondent
PETER FAWKNER
Thirty-Ninth Respondent
CALEB MCFARLANE
Fortieth Respondent
TERRY MURPHY
Forty-First Respondent
CRAIG RALPH
Forty-Second Respondent
TY WILLIAMS
Forty-Third Respondent
HENRY NEAVE
Forty-Fourth Respondent
GARRETH MURPHY
Forty-Fifth Respondent
CORY LITTLE
Forty-Sixth Respondent
ADAM BARDINI
Forty-Seventh Respondent
TRISTAN LYONS
Forty-Eighth Respondent
GREG PEAGHAM
Forty-Ninth Respondent
JEREMY PIGGOTT
Fiftieth Respondent
BEN HARCOMBE
Fifty-First Respondent
LACHLAN THOMAS
Fifty-Second Respondent
MICHAEL ESPLUND
Fifty-Third Respondent
ADRIAN NICOLOSI
Fifty-Fourth Respondent
JACOB NATION
Fifty-Fifth Respondent
CRAIG UNDERWOOD
Fifty-Sixth Respondent
PERRINE VAN DE PLASSE
Fifty-Seventh Respondent
JAMES ADDICOTT
Fifty-Eighth Respondent
KANGHUN LEE
Fifty-Ninth Respondent
BEN NERI
Sixtieth Respondent
GARRETT GRAVESON
Sixty-First Respondent
MATTIN OXANDABOURE
Sixty-Second Respondent
ANDREW TOUMPAS
Sixty-Third Respondent
DAVID WARD
Sixty-Fourth Respondent
KENNEDY PRICE
Sixty-Fifth Respondent
SCOTT MASSEY
Sixty-Sixth Respondent
CASEY DUNLOP
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