Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2)

In this case, the Australian Building and Construction Commissioner brought an action against the Construction, Forestry, Maritime, Mining and Energy Union and two of its employees, MacDonald and Long, for contraventions of sections 500 and 340(1) of the Fair Work Act 2009 (Cth). Section 500 prohibits a permit holder from acting in an improper manner while exercising or seeking to exercise their rights, and section 340(1) prohibits taking adverse action against another person because they have exercised or not exercised a workplace right. The primary dispute was whether MacDonald and Long had contravened these sections during their inspections of two premises, and if so, what penalties should be imposed. The court had to determine the nature and seriousness of the contraventions, the relevance of previous contraventions by the respondents, and the proportionality of the penalties imposed.

The court addressed several legal issues, including the correct interpretation of section 500 and whether the bare failures to comply with statutory requirements could be considered as elements of improper conduct. The Full Court had previously held that the construction of section 500 by the primary judge was incorrect and that the manner in which MacDonald and Long failed to comply with sections 487 and 489 could be considered part of their improper conduct. The court also had to consider the principles of totality and proportionality in determining the appropriate penalties. The Full Court emphasized the need to review the aggregate sentence to ensure it was just and appropriate, and that the court must look at the totality of the criminal behaviour when imposing penalties.

The court found that MacDonald and Long had indeed contravened section 500 by failing to provide notice of their entries and to show their entry permits on request, and that the CFMMEU was liable for these contraventions on a derivative basis. The court made declarations of contraventions, considering the educative value and utility in formally recording the basis upon which the proceeding had been resolved. The court evaluated the penalties imposed, taking into account the nature and seriousness of each contravention, the relevance of previous contraventions, and the principles of general and specific deterrence. The court applied the principle of totality to ensure that the aggregate penalty was just and appropriate. The court also considered whether personal payment orders should be imposed on MacDonald and Long, taking into account the principles relating to personal payment orders.

In conclusion, the court imposed pecuniary penalties on MacDonald, Long, and the CFMMEU for the contraventions of section 500, considering the totality principle and the principles of proportionality, general and specific deterrence. The court also made declarations of contraventions and determined that personal payment orders should be imposed on MacDonald and Long. The precise amounts of the penalties and declarations were detailed in the final orders of the court.