Cozadinos v Construction, Forestry, Mining and Energy Union

Michelle Cozadinos, an inspector of the Australian Building and Construction Commission, initiated proceedings against the Construction, Forestry, Mining and Energy Union (the Union) and one of its organisers, Mr Mates. The proceedings sought penalties for breaches of the Building and Construction Industry Improvement Act 2005 (the BCII Act) by the Union and Mr Mates, stemming from actions taken in response to the termination of Mr Leigh Scott, a health and safety representative and Union delegate. The Union and Mr Mates had organised a meeting and a work stoppage demanding Mr Scott's reinstatement, actions which contravened the BCII Act's prohibitions against unprotected industrial action. The parties agreed on the facts, and the court conducted a penalty hearing on 5 February 2010.

The legal issues before the court included the appropriate level of penalties for the breaches of the BCII Act by the Union and Mr Mates. The court considered the nature and extent of the contraventions, the circumstances in which they occurred, and the extent of any loss or damage caused. The Union and Mr Mates argued for minimal penalties, suggesting a range of $7,500–$12,000 for the Union and $5,000–$10,000 for Mr Mates. They contended that a single penalty should be imposed for each respondent, as the impugned conduct, though amounting to two offences, was not qualitatively different. The Union also argued that occupational health and safety concerns were a mitigating factor, though this was not directly linked to the contraventions in the evidence presented.

The court rejected the argument that occupational health and safety concerns mitigated the contraventions, as there was no evidence in the agreed facts that the employees were concerned about the termination of Mr Scott’s employment or perceived the Site as unsafe. The court noted that the contraventions were deliberate acts in breach of the BCII Act, and the respondents did not argue that Mr Mates was motivated by occupational health and safety concerns. The court also considered the significant interference with Adco's operations caused by the work stoppage, which led to the cessation of work for the day and incurred costs of approximately $20,000. Taking into account all relevant considerations, the court determined that the appropriate penalty for the Union was $30,000 and for Mr Mates, $20,000.