Australian Building and Construction Commissioner v Pattinson

In the matter of Australian Building and Construction Commissioner v Pattinson, the applicant, the Commissioner, sought pecuniary penalties against the first respondent, Mr Pattinson, and the second respondent, a trade union, for contraventions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). The dispute arose from conduct at a construction site in Frankston, Victoria, where Mr Pattinson, an employee and union officer, made false statements to employees of a subcontractor regarding their obligation to join a union. The legal issues before the court were whether the court should consider the history of contravening conduct in assessing the seriousness of the contraventions, the application of the “no ticket, no start” policy, and the appropriateness of declaratory relief.

The court found that the history of contravening conduct should inform the assessment of the seriousness of the contraventions, applying the principles of “course of conduct” and “totality.” The court emphasised the Union’s established policy and its indifference towards the penalties imposed for past contraventions, indicating an endorsement of such conduct. The Union’s admissions of liability did not reflect contrition or a change in its approach. The court also rejected the request for declaratory relief as unnecessary.

In imposing penalties, the court considered the deterrent effect and the Union’s apparent endorsement of its policy. Mr Pattinson was ordered to pay $6,000, and the Union was ordered to pay $63,000. The penalties were to be paid within 28 days, and no order for costs was made. This decision underscores the importance of deterrence in enforcing industrial laws and the need for unions to comply with legal obligations.