Brookfield Multiplex FSH Contractor Pty Ltd v McDonald

In Brookfield Multiplex FSH Contractor Pty Limited v McDonald, the Federal Court of Australia was required to determine the appropriate civil penalties for contraventions of sections 348 and 417 of the Fair Work Act 2009 (Cth) committed by the respondents arising from strike action. The applicants, Brookfield Multiplex FSH Contractor Pty Limited, Brookfield Multiplex Constructions Pty Ltd, and Brookfield Multiplex Australasia Pty Ltd, were engaged in building projects in Western Australia, and the respondents, Joseph McDonald, Graham Pallot, and the Construction, Forestry, Mining and Energy Union (CFMEU), were involved in the strike action. The primary legal issue before the court was to determine the appropriate civil penalties for the contraventions of sections 348 and 417 of the Fair Work Act.

The court considered several factors in determining the appropriate penalties. These factors included the gravity of the contraventions, the purpose of the penalties, the totality principle, the deliberate nature of the contraventions, the history of non-compliance by the first and third respondents, the respondents' admissions, and the motivation behind the strike action. The court emphasised that the penalties should serve the purposes of punishment, deterrence, and rehabilitation. The court also considered the benefit of the totality principle and the cooperation of the respondents in resolving the matter.

After weighing all the relevant factors, the court determined that the penalties should be fixed at the lower end of the agreed range. The motivation for the industrial action was to support an injured worker on another site, which demonstrated that the contravention was of a lower magnitude of wrongdoing than if the motivation had been entirely self-interested. Additionally, the degree of cooperation by the respondents in resolving the matter warranted a penalty at the lower end of the range. Consequently, the court ordered Joseph McDonald to pay a penalty of $9,500, Graham Pallot to pay a penalty of $3,500, and the CFMEU to pay a penalty of $48,000. The penalties were to be paid to the applicants and delivered to the applicants' solicitors within 30 days of the order.