Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case)

In the Federal Court, the Australian Building and Construction Commissioner brought an action against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and two individuals, Mr Hassett and Mr Harkins, for alleged contraventions of the Fair Work Act 2009 (Cth). The specific sections of the Act that were contravened were sections 494 and 500. The contraventions were admitted by the parties. The Court was required to decide the appropriate penalties for these contraventions. The legal issues included determining the maximum penalties applicable, the need for specific deterrence, and the role of specific deterrence in the sentencing exercise.

The Court found that Mr Hassett, who was not a permit holder under the Fair Work Act, contravened sections 494(1) and 494(2) of the Act by entering the Project on two occasions and attempting to exercise rights under the Work Health and Safety Act 2012 (Tas). The Court also found that Mr Hassett was a recidivist and had previously contravened the Fair Work Act on multiple occasions. The Court considered the maximum penalties applicable at the time of the contraventions, which were $63,000 for the CFMMEU and $12,600 for the individual respondents. The Court took into account the need for specific deterrence and the role of specific deterrence in the sentencing exercise. The Court also considered the previous contraventions of Mr Hassett and the fact that he had ceased being a permit holder.

The Court ordered that the CFMMEU pay pecuniary penalties of $50,000, $45,000, $45,000, and $45,000 for the contraventions referred to in declarations 6(a), 6(b), 6(c) and (d), and 6(e) respectively. Mr Hassett was ordered to pay pecuniary penalties of $10,000 and $10,000 for the contraventions referred to in declarations 1 and 2 respectively. Mr Harkins was ordered to pay pecuniary penalties of $8,000 and $8,000 for the contraventions referred to in declarations 3, 4, and 5. The Court also ordered that Mr Hassett not seek or accept any financial benefit from the CFMMEU in relation to the payment of the penalties. The pecuniary penalties were to be paid to the Commonwealth of Australia within a specified period. There was no order as to costs.