Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case)

The case involves the Australian Building and Construction Commissioner (ABCC) bringing proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for admitted contraventions of several sections of the Fair Work Act 2009 (Cth). The Federal Court was tasked with determining appropriate penalties for the contraventions and issuing declarations regarding the contraventions. The CFMMEU did not contest the contraventions and the court agreed that declarations should be made. The court found that declarations are appropriate in cases where the proceedings are based on formal admissions and where the contraventions have been formally identified, providing a succinct identification of the conduct for which penalties are imposed and serving as a statement of the court’s denunciation of the contravening conduct.

The court considered several factors in determining the appropriate penalties, including the nature, seriousness and character of the conduct, the loss and damage caused, the circumstances in which the conduct took place, the size of the contravener and its degree of power, the deliberateness of the conduct, the degree of involvement of senior officials or management, the culture of the organisation as to compliance or contravention, and any cooperation with the regulator and contrition. The primary objective of the penalty was deterrence, and the penalties were to be proportionate to the contraventions in question. The court took into account the history of contraventions in fixing the penalty level but emphasized that the penalty was for the conduct in question, not prior conduct.

The court made declarations regarding each contravention and imposed pecuniary penalties on the CFMMEU and certain individuals associated with the union. The penalties ranged from $1,800 to $42,500, with the majority being paid by the CFMMEU. The penalties were to be paid to the Commonwealth within 28 days. The court's reasoning was based on the admitted contraventions, the principles of deterrence and proportionality, and the specific circumstances of each contravention.