Australian Building and Construction Commissioner v Parker

In the matter of Australian Building and Construction Commissioner v Parker, the case involved a dispute over the imposition of civil penalties under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). The Australian Building and Construction Commissioner (ABCC) sought penalties against Mr Parker and the union to which he belonged for organising unlawful industrial action. The dispute centred around safety concerns raised by Mr Parker, a union delegate, regarding the adequacy of a first aid room at the Melbourne Metro Tunnel Project. The union was derivatively liable for the actions of Mr Parker under the provisions of the Act.

The primary legal issue before the court was the appropriate quantum of penalties to be imposed on Mr Parker and the union for the admitted contraventions of the Act. The court had to balance the reasonable nature of Mr Parker's concerns against the lack of imminent risk to health and safety, and consider the union's commitment to improving its conduct regarding work safety issues. The court also had to decide whether to grant the declarations sought by the ABCC, which were considered bare of contextual detail and not suitable for making as a declaration.

In determining the appropriate penalty, the court considered the entirely proper conduct of Mr Parker, the reasonable nature of his concerns, and the lack of imminent risk. The court imposed a penalty of $85,000 on the union, reflecting a synthesis of the considerations and placing the penalty within the mid-range but at the lower end. The court declined to make the declarations sought by the ABCC due to their lack of contextual detail and the inappropriateness of using declarations merely to record the fact of a contravention without more. The court ordered Mr Parker to pay a penalty of $5,000, which was wholly suspended on the condition that he commit no further offences for three years, and the union to pay $85,000 within 28 days. The union was also ordered to pay the ABCC's costs of the proceeding, subject to the payment of the ABCC's costs thrown away by the adjournment of the hearing.