Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2)

The Federal Court was called upon to determine the appropriate penalties for breaches of section 500 of the Fair Work Act 2009 (Cth) by the Construction, Forestry, Maritime, Mining and Energy Union and one of its officials. The court found the union and its official to have contravened the section by engaging in unprotected industrial action, which had been declared unlawful. The matter concerned the union’s actions in relation to a building project for Geelong Grammar School, where the union had called for a boycott of the site. The court had previously found the union’s actions to be in breach of the Act. The central legal issues before the court were the appropriate quantum of the pecuniary penalties to be imposed on the union and its official for their contraventions of section 500. The court had to consider various factors, including the gravity of the contraventions, the culpability of the respondents, and the need for deterrence and retribution. The court also had to consider the union's prior history of similar contraventions and the union official’s personal involvement.

The court assessed the gravity of the contraventions, noting the significant impact of the industrial action on the Geelong Grammar School project, and the potential for broader industrial disruption. The court acknowledged the union’s prior history of similar contraventions, which indicated a pattern of behaviour that required deterrence. However, the court also considered the union’s cooperation in resolving the matter and the steps taken to rectify the situation. In determining the appropriate penalty for the union, the court recognised the need for a substantial penalty to serve as a deterrent to future contraventions, while also taking into account the union’s cooperation and efforts to rectify the situation. For the union official, the court considered his level of involvement and culpability, and imposed a lesser penalty to reflect his personal responsibility. The court ultimately decided that a penalty of $30,000 for the union and $4,500 for the union official was appropriate, considering all relevant factors.