Australian Building and Construction Commissioner v Gava

In the matter of Australian Building and Construction Commissioner v Gava, the Court dealt with multiple contraventions of section 503 of the Fair Work Act 2009 (Cth) by Mark Gava and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The primary dispute arose from Gava's actions on two consecutive days in December 2016, where he impersonated an authorised permit holder to gain access to a construction site, which constituted contraventions of the Act. The Federal Court was tasked with determining the appropriate penalties for these contraventions and whether a personal payment order should be imposed on Gava.

The court considered whether Gava's actions on the two days were part of the same contravention or separate incidents, and whether the penalties should reflect this. Additionally, the court evaluated the appropriateness of a personal payment order under section 546 of the FW Act, given Gava's employment status and the isolated nature of his conduct.

The court concluded that Gava's actions on the two days constituted separate contraventions, despite them being part of a single course of conduct. This decision was based on the necessity to avoid penalising the same conduct twice while still assessing culpability accurately. The court also rejected the notion that the penalties should be moderated based on the totality principle, as it would undermine the need for penalties to be proportionate to the specific case. The court imposed penalties of $3,500 and $2,500 on Gava, and $40,000 and $28,000 on the CFMMEU for the respective contraventions. The court refused the application for a personal payment order, considering Gava's departure from employment with the union and the isolated nature of his actions.

The court's reasoning emphasized the importance of deterrence, particularly personal deterrence, and highlighted the CFMMEU's history of contraventions. Despite some credit for early admissions of the allegations, the lack of expressions of regret or contrition by the CFMMEU or Gava, and the absence of evidence of corrective action, were noted as significant factors in determining the penalties. The court's final orders included specific pecuniary penalties for Gava and the CFMMEU, with a refusal to impose a personal payment order on Gava.