FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Building and Construction Commissioner v Gutierrez [2022] FedCFamC2G 8
ORDERS
SYG 1018 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: SIMON PASQUALE GUTIERREZ
First Respondent
CONSTRUCTION,…
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Details
- Case
- [2022] FedCFamC2G 8
- Decision Date
CaseChat Overview and Summary
The case of Australian Building and Construction Commissioner v Gutierrez was heard in the Australian court system, with the Australian Building and Construction Commissioner (ABCC) acting as the applicant and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Mr. Gutierrez as the respondents. The dispute centred around the assessment of pecuniary penalties for admitted contraventions of section 500(1) of the Fair Work Act 2009 (Cth). The ABCC sought orders for the payment of pecuniary penalties against the CFMMEU and Mr. Gutierrez for their roles in the contraventions.
The primary legal issues addressed by the court involved determining the appropriate penalty for admitted contraventions of the Fair Work Act, specifically section 500(1). The court had to consider the relevance of the CFMMEU's history of contravening conduct in assessing the appropriate penalty, the proportionality of the penalty to the conduct, and the principles of general and specific deterrence in penalty assessment. Another key issue was whether the maximum penalty should only be imposed for the most serious and grave contraventions, as well as the correct application of these principles in the context of the Full Federal Court's decision in Pattinson.
The court provided a comprehensive analysis of the legal principles involved in assessing penalties for contraventions of the Fair Work Act. It was determined that a penalty should be proportionate to the contravening conduct, taking into account the character of the conduct and the likelihood of the contravener engaging in similar conduct in the future. The court clarified that past contravening conduct may be relevant to assessing the nature of the conduct and the need for specific deterrence, but it is not determinative of the penalty. The court also held that the Full Federal Court in Pattinson did not establish a principle that the maximum penalty is reserved for the most serious and grave contraventions; instead, the court focused on the need for a proper assessment of the contravening conduct's character. Ultimately, the court found that the penalties imposed were appropriate given the admitted contraventions and the relevant factors considered.
The court made orders for the payment of pecuniary penalties against the CFMMEU and Mr. Gutierrez, reflecting the considerations outlined in its reasoning. The court determined that the penalties imposed were proportionate to the admitted contraventions, taking into account the character of the conduct and the need for deterrence. The court's decision provides guidance on the assessment of penalties for contraventions of the Fair Work Act, emphasizing the importance of a balanced and proportionate approach.
The primary legal issues addressed by the court involved determining the appropriate penalty for admitted contraventions of the Fair Work Act, specifically section 500(1). The court had to consider the relevance of the CFMMEU's history of contravening conduct in assessing the appropriate penalty, the proportionality of the penalty to the conduct, and the principles of general and specific deterrence in penalty assessment. Another key issue was whether the maximum penalty should only be imposed for the most serious and grave contraventions, as well as the correct application of these principles in the context of the Full Federal Court's decision in Pattinson.
The court provided a comprehensive analysis of the legal principles involved in assessing penalties for contraventions of the Fair Work Act. It was determined that a penalty should be proportionate to the contravening conduct, taking into account the character of the conduct and the likelihood of the contravener engaging in similar conduct in the future. The court clarified that past contravening conduct may be relevant to assessing the nature of the conduct and the need for specific deterrence, but it is not determinative of the penalty. The court also held that the Full Federal Court in Pattinson did not establish a principle that the maximum penalty is reserved for the most serious and grave contraventions; instead, the court focused on the need for a proper assessment of the contravening conduct's character. Ultimately, the court found that the penalties imposed were appropriate given the admitted contraventions and the relevant factors considered.
The court made orders for the payment of pecuniary penalties against the CFMMEU and Mr. Gutierrez, reflecting the considerations outlined in its reasoning. The court determined that the penalties imposed were proportionate to the admitted contraventions, taking into account the character of the conduct and the need for deterrence. The court's decision provides guidance on the assessment of penalties for contraventions of the Fair Work Act, emphasizing the importance of a balanced and proportionate approach.
Orders
Orders of the court
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Background
Background to the litigation
The determination of these questions by the High Court will not have any bearing on how I should assess penalties in this case, and in particular, on the relevance I should attach to the CFMMEU’s extensive history of contravening conduct which the ABCC submits is relevant to assessing the appropriate penalty. First, the ABCC accepts that a penalty should be proportionate to the contravening conduct, even where the contravener has an extensive history of contravening conduct.[30] Second, the Full Federal Court in Pattinson did not hold that specific and general deterrence are not relevant to assessing a penalty; it held that past contravening conduct was potentially relevant to assessing the character of the nature of the contravening conduct,[31] and to assessing whether there is a sufficient probability the contravener will engage in the same contravening conduct such as to warrant including in the penalty a component for specific deterrence.[32] Third, the specific error the Full Federal Court in Pattinson found the primary judge made was not that he imposed the maximum penalty for contravening conduct that was not of the most serious and grave kind; the Full Federal Court found the primary judge erred because he imposed the maximum penalty on the basis of the contravener’s history of contraventions without assessing the character of the conduct that constituted the contraventions in question. Thus, to the extent the Full Federal Court is held to have been of the view that a maximum penalty is reserved for contraventions of the most serious and grave kind, that was not the basis on which it upheld the appeal. It would therefore not be a principle that is binding on this Court.[30] Applicant’s submission on penalty, [24]; Applicant’s reply submissions on penalty, [6]-[11][31] Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177, at [194][32] Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177, at [57], [191]ADMITTED FACTS I will now set out the admitted facts.The parties The ABCC was appointed as such pursuant to s 21(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act). Under s 66(3) of the BCIIP Act the ABCC is an “Australian Building and Construction Inspector” and, under s 111(1) of the BCIIP Act, the ABCC has the same authority as a Fair Work Inspector under the FW Act to apply to, or otherwise institute proceedings in, a court under the FW Act; and, for these reasons, the ABCC has standing under s 539 of the FW Act to bring this proceeding.[33][33] ASC, [1] The CFMMEU is an organisation registered under s 26 of the RO Act and, as a consequence, under s 27 of that Act, is a body corporate capable of suing and being sued. Further, the CFMMEU is as industrial association of employees whose rules allow membership by building employees within the meaning of s 5 of the BCIIP Act.[34][34] ASC, [3] At all relevant times Mr Gutierrez was an employee of the CFMMEU, and an “official” and “officer” of the CFMMEU within the meaning of those expressions as defined in s 12 of the FW Act. Mr Gutierrez was also the holder of an entry permit issued under s 512 of the FW Act (being the FW permit), and the holder of an entry permit issued under s 134 of the WHS Act (being the WHS permit). The FW and the WHS permits were issued to Mr Gutierrez on 6 August 2018 and 19 June 2018 respectively.[35][35] ASC, [2]The Project
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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