Director, Fair Work Building Industry Inspectorate v J Hutchinson Pty Ltd T/A Hutchinson Builders

The Director, Fair Work Building Industry Inspectorate (the applicant) brought proceedings against J Hutchinson Pty Ltd T/A Hutchinson Builders (the first respondent), Michael Myles (the second respondent), Mark O’Brien (the third respondent), and the Construction, Forestry, Mining and Energy Union (the fourth respondent). The applicant sought declarations of contraventions of the *Fair Work Act 2009* (Cth) and the imposition of pecuniary penalties arising from unlawful industrial action organised by the second and third respondents, acting as organisers for the fourth respondent, at the Arena Apartments construction project in South Brisbane on 9 December 2013. The respondents admitted the contraventions.

The court was required to determine whether the second, third, and fourth respondents had contravened section 417(1) of the *Fair Work Act 2009* (Cth) by organising industrial action on 9 December 2013, and if so, to assess and impose appropriate pecuniary penalties. The legal issues centred on the application of section 417(1), which prohibits the organisation or engagement in industrial action before the nominal expiry date of an enterprise agreement, and the principles governing the assessment of penalties for such contraventions, including the importance of deterrence and the impact of prior contraventions.

Judge Jarrett found that the second and third respondents, acting as organisers for the fourth respondent, had indeed contravened section 417(1) by organising the cessation of work by employees on the Arena Apartments project. This action was taken to protest the presence of Queensland Government inspectors conducting an audit of the first respondent's compliance with the Queensland Code of Practice for the Building and Construction Industry. The court reasoned that the purpose of the industrial action was not related to terms and conditions of employment or safety, but rather to thwart the statutory duties of the inspectors. In assessing penalties, the court considered the deliberate nature of the conduct, the need for general and specific deterrence, and the extensive history of non-compliance by the fourth respondent with industrial laws. The court also acknowledged the respondents' admissions, which saved the expense of a trial.

The court declared that section 417(1) of the *Fair Work Act 2009* (Cth) was contravened by the second, third, and fourth respondents. Pecuniary penalties were ordered as follows: $5,100 against the second respondent, $5,100 against the third respondent, and $25,500 against the fourth respondent. These penalties were to be paid to the Consolidated Revenue Fund of the Commonwealth within 28 days. The court determined that the fourth respondent should not be penalised twice for the same conduct, and therefore imposed a penalty in respect of the contravention by the second respondent but not for the third respondent's contravention.