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

The case before the court involved the Australian Building and Construction Commissioner (the Commissioner) seeking a range of remedies against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and two of its officials, Mr Davies and Mr Tadic, for contraventions of the Fair Work Act 2009 (Cth). The primary issue was whether the respondents had contravened sections 497 and 500 of the Act and, if so, what appropriate penalties should be imposed. The court was also asked to consider whether a non-indemnification personal payment order should be made against Mr Tadic. The Commissioner sought declarations of contravention, pecuniary penalties, and orders for payment to the Commonwealth, along with an order that Mr Tadic pay his penalties personally and not seek reimbursement from the CFMEU.

The court found that the respondents had indeed contravened sections 497 and 500 of the Fair Work Act. It held that the declarations sought by the Commissioner were appropriate as they would serve a practical and educative purpose by alerting participants in the building and construction industry and others engaged in the Federal industrial system about the type of conduct proscribed by the Act. The court then turned to the issue of pecuniary penalties. It noted that the maximum penalties available for contraventions of sections 497 and 500 were significant, with the value of a penalty unit at the relevant times being $170. The court considered various factors, including the nature and seriousness of the contraventions, in determining the appropriate penalties for each respondent. It concluded that the penalties imposed should reflect the gravity of the contraventions and the need for deterrence and punishment.

Following its assessment, the court ordered specific pecuniary penalties for each respondent. Mr Tadic was ordered to pay penalties totalling $17,000 for six contraventions, while Mr Davies was ordered to pay penalties totalling $190,000 for seven contraventions. The CFMEU was ordered to pay penalties totalling $245,000 for seven contraventions. The court also ordered that the penalties be paid to the Commonwealth within specified timeframes and directed that the orders be served on the respondents in accordance with the Federal Court Rules 2011 (Cth). The proceeding was dismissed otherwise, and there was no order as to costs.