Australian Building and Construction Commissioner v McCullough (No 2)

The case of Australian Building and Construction Commissioner v McCullough (No 2) involved a dispute over penalties and costs in relation to contraventions of section 417(1)(a) of the Fair Work Act 2009 (Cth). The Australian Building and Construction Commissioner, who had replaced the Director of the Fair Work Building Industry Inspectorate, sought to impose penalties on respondents found to have contravened the Act. The respondents, in turn, argued for specific penalties and sought costs from the exonerated respondents who were not found to have contravened the Act. The central issues before the court were determining the appropriate penalties for the respondents found to have contravened the Act and whether the exonerated respondents were entitled to an order that the Commissioner pay their costs of the proceeding.

The court considered various factors in assessing the appropriate penalties, including the need for specific and general deterrence. The Commissioner argued for penalties of $4,000 for the first respondent and $2,000 for each of the other respondents, emphasizing the seriousness of engaging in industrial action during the term of an enterprise agreement. The respondents contended for a uniform penalty of $1,000 for each respondent. Regarding the exonerated respondents, they sought an order for the Commissioner to pay their costs, arguing that the proceedings against them were instituted without reasonable cause.

The court ultimately determined that the penalties should reflect the gravity of the contravening conduct while also ensuring proportionality and consistency with penalties imposed in similar matters. The court imposed a penalty of $1,300 on each of the relevant respondents and dismissed the application for costs on behalf of the exonerated respondents. This decision balanced the need for deterrence with the principles of proportionality and consistency in penalty imposition.