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

The Federal Court of Australia considered a case brought by the Australian Building and Construction Commissioner against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and an individual union official, Mr. Hassett. The dispute arose from allegations that Mr. Hassett contravened section 500 of the Fair Work Act 2009 (Cth) on multiple occasions on 12 October 2016. The Commissioner sought declarations of contravention, pecuniary penalties, and orders for payment of those penalties to the Commonwealth. Additionally, the Commissioner requested that Mr. Hassett not seek reimbursement from the CFMMEU for any penalty he personally pays. The CFMMEU and Mr. Hassett contested the declarations and the proposed penalties.

The primary legal issues before the court were whether the declarations of contravention should be made as proposed by the Commissioner and, if so, what the appropriate pecuniary penalties should be. The court needed to consider the maximum penalties available under the Fair Work Act, the guiding principles for determining penalties, and the specific circumstances of the contraventions. The court had to balance the need for deterrence and punishment against the ability of the respondents to pay.

The court found that the declarations proposed by the Commissioner were appropriate and should be made. It considered the maximum penalties available under the Act and noted that the value of a penalty unit at the time of the contraventions was $180. The maximum penalty for the CFMMEU was $54,000, and for Mr. Hassett, $10,800. The court applied guiding principles from previous cases to determine the appropriate penalties. It found that the CFMMEU should pay a penalty of $50,000, and Mr. Hassett should pay a penalty of $7,500. The penalties were to be paid to the Commonwealth within specified periods. The court made no order as to costs and dismissed the proceeding otherwise.

The court ordered that the First Respondent, the CFMMEU, pay a penalty of $50,000 within 28 days, and the Third Respondent, Mr. Hassett, pay a penalty of $7,500 within 60 days. It further directed that these orders be served on the respondents according to specific rules of the Federal Court. The proceeding was dismissed in all other respects.