Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd

The matter before the court involves the Construction, Forestry, Maritime, Mining and Energy Union (the "Applicant") and Milin Builders Pty Ltd (the "First Respondent"). The dispute centres on an alleged contravention of section 501 of the Fair Work Act 2009 (Cth) (the "FW Act") by the First Respondent, specifically, the refusal of entry to a meal room on the Trilogy Apartment Building Site in Phillip, ACT on 5 February 2016. The Applicant sought a declaration of contravention, a pecuniary penalty, and other relief. The court addressed the appropriate penalty for the contravention, the principles governing the making of a declaration, and the final orders to be made.

The primary legal issues before the court included the interpretation of the phrase "refuse entry" within the context of the FW Act, the proportionality of the penalty to the contravening conduct, and the principles to be applied in making a declaration of contravention. The court had to determine whether the First Respondent had indeed refused entry as alleged, and if so, what penalty should be imposed to achieve deterrence. Additionally, the court needed to consider whether declaratory relief should be granted, and if so, in what terms.

The court found that the First Respondent had refused entry to the union officers as alleged. It examined the principles of proportionality and deterrence in determining the appropriate penalty, taking into account the First Respondent's contrition, cultural considerations, and the absence of prior contraventions. The court acknowledged the First Respondent's appropriate contrition and its overall good compliance culture, which warranted a discount on the otherwise appropriate penalty. The court imposed a pecuniary penalty of $15,000.00, considering the deterrence factors and the circumstances of the case. The court also granted the declaratory relief as sought by the parties, specifying the contravention as per the agreement. Finally, the court ordered the penalty payment within 28 days, dismissed the proceeding otherwise, and made no order as to costs.

This decision underscores the court's role in interpreting industrial laws, applying principles of deterrence and proportionality in penal matters, and exercising discretion in granting declaratory relief.