Australian Building and Construction Commissioner v Powell (No 2)

The Australian Building and Construction Commissioner (ABCC) sought a declaration and pecuniary penalties against Powell, an official of an organisation, for contravening section 494(1) of the Fair Work Act 2009 (Cth) by exercising a State or Territory occupational health and safety (OHS) right without being a permit holder. The contraventions occurred on 21 May 2014, 22 May 2014, 15 July 2014, and 28 October 2014. The ABCC's application was heard by the Federal Court of Australia. The court was tasked with determining whether a declaration should be made that Powell contravened section 494(1) of the Fair Work Act 2009 (Cth) on the specified dates by exercising a State or Territory OHS right without an entry permit issued by the Fair Work Commission. Additionally, the court had to decide on the appropriate pecuniary penalties to be imposed for these contraventions, considering factors such as the genuine but mistaken view of the law, previous contraventions, proportionality, and the principles of general and specific deterrence.

The court found that Powell had indeed contravened section 494(1) of the Fair Work Act 2009 (Cth) by exercising a State or Territory OHS right without the requisite permit. The court accepted that the contraventions were genuine but mistaken, and Powell had acted in good faith believing he was exercising his rights under the OHS Act. The court considered the principles of proportionality and the need for general and specific deterrence in determining the penalty. It also took into account Powell's previous contraventions of industrial legislation. The court concluded that while the contraventions were serious, the penalty should reflect Powell's good faith and the educative value of the declaration. The court imposed a penalty of $5,000 for each contravention, resulting in a total penalty of $20,000.

The court made a declaration that Powell contravened section 494(1) of the Fair Work Act 2009 (Cth) on the specified dates and ordered him to pay a pecuniary penalty of $20,000. The court emphasised the importance of the declaration in educating Powell and others about the legal requirements for exercising OHS rights on construction sites. The penalty was deemed sufficient to achieve general and specific deterrence while considering the principles of proportionality and Powell's good faith.