Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2)

The Australian Building and Construction Commissioner brought proceedings against the Construction, Forestry, Maritime, Mining and Energy Union and two of its officials, alleging breaches of the Fair Work Act 2009 (Cth). The alleged contraventions related to the conduct of the respondents during industrial action at the Monash Freeway Widening project. The Fair Work Commission found the respondents had contravened sections 499 and 500 of the Act by engaging in unprotected industrial action and providing misleading information to the Commission. The Federal Court was tasked with determining the appropriate pecuniary penalties to be imposed on the respondents for the contraventions.

The court was required to consider several legal issues, including the appropriate method for calculating the penalties, the significance of the respondents' history of contravening conduct, and whether that history should inform the court's assessment of the appropriate penalties. The court also needed to consider the significance of the respondents' corrective action in mitigating the gravity of their conduct. Furthermore, the court had to assess whether the penalties imposed would effectively deter future contraventions and whether declaratory relief was warranted.

The court found that the appropriate method for calculating the penalties was to consider the nature, gravity, character, and seriousness of the contraventions, as well as the respondents' history of contravening conduct. The court determined that the history of the respondents' contravening conduct was relevant to the assessment of the appropriate penalties, as it demonstrated a pattern of behaviour that warranted a significant penalty. The court also found that the respondents' corrective action, including the payment of significant fines and the implementation of reforms, was relevant in mitigating the gravity of their conduct. The court ultimately determined that the penalties imposed were appropriate and that declaratory relief was not warranted.

The court ordered the first respondent to pay pecuniary penalties totalling $47,250.00 and the second respondent to pay penalties totalling $7,290.00. The penalties were to be paid to the Commonwealth within 28 days. The court made no order as to costs. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.