Australian Building and Construction Commissioner v Pauls

In the case of Australian Building and Construction Commissioner v Pauls, the Fair Work Ombudsman, acting through the Australian Building and Construction Commissioner, filed a claim against Pauls, Steele, Bland, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for contraventions of sections 355 and 417 of the Fair Work Act 2009 (Cth). The respondents admitted to the allegations made in the Commissioner's statement of claim, which pertained to industrial action organised by the respondents at six construction sites in Brisbane. The primary legal issues the court had to address were the number of contraventions to be found, the applicability of section 557 of the Fair Work Act, and the quantum of pecuniary penalties to be imposed.

The court considered the submissions of the respondents that the contraventions should be treated as a single contravention under section 557 of the Fair Work Act, which states that two or more contraventions of certain civil remedy provisions are taken to constitute a single contravention for the purposes of the Act. The respondents argued that this section applied to both the findings of contravention and the declarations to be made. However, the court rejected this argument, finding that section 557(1) primarily governs the imposition of penalties and does not affect the number of findings of contravention that can be made. The court noted that the section describes how multiple contraventions are to be treated for the purposes of orders under section 545 and penalties under section 546, but does not limit the number of contraventions that can be found. Therefore, the court found that the contraventions by each respondent were distinct and warranted separate findings.

The court subsequently determined the quantum of the pecuniary penalties. It found that the contraventions by Pauls, Steele, and Bland warranted a penalty of $10,000 each for their individual contraventions of sections 355 and 417. Given that the CFMEU was vicariously liable for the actions of its officials, it was also ordered to pay a penalty of $10,000 for each of the individual contraventions. However, because the CFMEU was the head contractor for the projects, and its contraventions were more serious, it was ordered to pay a penalty of $50,000 for each contravention, totaling $100,000.

The court made its orders pursuant to the submissions and the admitted facts. Each respondent was ordered to pay their respective penalties to the Commonwealth of Australia within 30 days. The court's reasoning was based on the seriousness of the contraventions and the role of each respondent in organising the industrial action. The court found that the actions taken by the respondents were deliberate and intended to coerce the employer to not engage subcontractors that were not covered by an enterprise agreement that covered the CFMEU.