Australian Building and Construction Commissioner v Bray

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.