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

The Australian Building and Construction Commissioner brought an action against the Construction, Forestry, Maritime, Mining and Energy Union, and two of its officials, Raspudic and Travers, for contraventions of the Fair Work Act 2009 (Cth). The contraventions involved the enforcement of a "no ticket, no start" policy, and the coercion of a subcontractor to pay union rates, contrary to section 348 of the Act. The court had to determine the appropriate penalties for the admitted contraventions, considering factors such as the nature, gravity, and seriousness of the conduct. The court also had to consider whether the respondents' history of contravening conduct should inform the assessment of the objective seriousness of the contraventions, and whether principles of "civil double jeopardy", "course of conduct", and "totality" should apply.

The court found that while the respondents had conceded the contraventions, there was no evidence of genuine contrition or a commitment to avoid future contraventions. The court considered the penalties imposed by the Fair Work Commission in a related matter, and the principle of proportionality in penalty determination. The court also noted that the respondents had not demonstrated a sufficient degree of cooperation with the Commissioner. The court determined that the penalties should reflect the seriousness of the contraventions, and be sufficient to deter future contraventions. The court held that the penalties should be paid personally by Raspudic and Travers, and not by the Union, to ensure that the penalties had a meaningful impact on the respondents.

The court ordered that the Union pay pecuniary penalties of $110,000, Raspudic pay $7,500, and Travers pay $6,000. The penalties were to be paid to the Commonwealth within specified periods. The court also ordered that Raspudic and Travers not seek to have the Union pay their penalties, or accept any financial benefit from the Union in relation to the penalties. The court declined to make an order for costs, in light of section 570(1) of the Fair Work Act, which limits the circumstances in which costs may be awarded. The court did not grant declaratory relief, as it considered that the penalties imposed were sufficient to address the contraventions.