Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union

The case before the court involves a dispute between the Australian Building and Construction Commissioner (the ABCC) and three respondents, namely Rawcorp, Classic Concrete Pumping, and Dallem Concrete Constructions. The ABCC sought declarations that the respondents had contravened the Fair Work Act 2009 (Cth) and to impose pecuniary penalties on them. The dispute arose from an incident on 30 April 2020, where Rawcorp, a construction company, was undertaking a concrete pour for a residential apartment building project. During the concrete pour, two union representatives exercised their rights under the Fair Work Act to enter the site and investigate a suspected contravention. The Third Respondent, in particular, engaged in aggressive and abusive conduct towards the site consultant, Ms. Jennifer Petterson. The ABCC argued that the respondents' actions constituted bullying and harassment, which is a contravention of the Fair Work Act.

The primary legal issue before the court was whether the respondents had engaged in conduct that amounted to bullying and harassment in the workplace, as defined by the Fair Work Act. The court needed to determine if the actions of the Second and Third Respondents constituted bullying and harassment and if so, whether the conduct was serious enough to warrant pecuniary penalties. The court also needed to consider the appropriate amount of penalty to impose on the respondents, taking into account the principles of deterrence and general deterrence as outlined in previous case law.

The court found that the conduct of the Second and Third Respondents constituted bullying and harassment. The court noted that the Third Respondent's aggressive and abusive language towards Ms. Petterson was of a nature that a reasonable person, having regard to all the circumstances, would regard as bullying or harassing. The court also found that the Second Respondent's actions in engaging in discussions with Ms. Petterson about the static line and the nature of the scaffolding contributed to the overall bullying and harassing conduct. The court emphasised the importance of context in determining the seriousness of the contravention and the appropriate penalty. The court imposed pecuniary penalties on the First and Second Respondents for the contravention by the Second Respondent and on the First and Third Respondents for the contravention by the Third Respondent. The penalties were calculated based on the gravity of the offence and the ability of the respondents to pay.

The court made declarations that all three respondents had contravened the Fair Work Act and imposed pecuniary penalties on them. The First Respondent was liable to a maximum penalty of $63,000 for the contravention by the Second Respondent and the Third Respondent. The Second Respondent was liable to a maximum penalty of $12,600 for their own contravention, and the Third Respondent was liable to a maximum penalty of $12,600 for their own contravention. The court emphasised the importance of deterrence and general deterrence in imposing penalties and considered the context of the contravention in determining the appropriate amount of penalty.