Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2)

In this matter, the Australian Building and Construction Commissioner brought an action against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), as well as two of its officers, Long and Benstead, for contraventions of the Fair Work Act 2009 (Cth) (FW Act). The primary judgment addressed liability, finding that the CFMMEU, Long, and Benstead had contravened sections 346 and 348 of the FW Act by organising industrial action and taking adverse action against the head contractor, BPM, at a building project in Brighton. The current decision focuses on the imposition of pecuniary penalties for these contraventions. The Commissioner sought penalties at the high end of the range for Long and Benstead, and close to the maximum for two separate contraventions by the CFMMEU. Conversely, the CFMMEU argued for penalties at the low end of the range for Long, Benstead, and itself for one contravention. The court had to consider the relevant principles for penalty imposition, including the protective purpose of penalties to promote compliance, the need for specific and general deterrence, and the proportionality of the penalty relative to the contravention. The court also had to weigh the maximum penalty for the contravention, the objective seriousness of the conduct, and the particular circumstances of the respondents.

The court concluded that the appropriate penalties should reflect both the deterrence objectives and the proportionality principle. For Long, the court imposed a penalty of $6,000, considering the seriousness of the contravention and the need for deterrence. For Benstead, the penalty was set at $6,500, taking into account similar factors. The CFMMEU was ordered to pay $38,000 for its contravention, reflecting the need for a higher penalty due to the corporate nature of the contravention and the importance of general deterrence. The court also imposed personal liability orders on Long and Benstead to prevent the CFMMEU from indirectly paying the penalties on their behalf. Finally, the court ordered the penalties to be paid to the Commonwealth within 56 days and dismissed the proceeding without costs.