Director of the Fair Work Building Industry Inspectorate v CFMEU

The Director of the Fair Work Building Industry Inspectorate brought proceedings against various respondents in the Federal Circuit Court, alleging admitted contraventions of section 43(1)(a) of the Building and Construction Industry Improvement Act 2005. The contraventions related to conduct intended to coerce St Hilliers’ Construction Pty Ltd to reinstate an employee, Warren Whitney. The court was required to determine the appropriate quantum of penalties for the admitted contraventions, where the parties had agreed on the quantum but needed the court’s approval to ensure it fell within the permissible range. The court also had to consider the relevant matters in exercising its discretion under the Act.

The court reviewed the agreed penalties and the matters pertinent to the exercise of its discretion. It noted the need for penalties to serve as both punishment and deterrence. The court examined the seriousness of the contraventions, the culpability of the respondents, and the need for uniformity in penalties for similar conduct. After considering these factors, the court found that the agreed penalties were within the permissible range and appropriate given the circumstances. The court then confirmed the penalties as agreed by the parties.

The Federal Circuit Court confirmed the penalties as agreed between the parties. The second and third respondents were ordered to pay $5,000 each for their conduct on 2 September 2011, while the fifth respondent was ordered to pay $3,000 for his actions on the same date. The first respondent was ordered to pay $34,000 for being vicariously liable for the conduct of the second, third, and fifth respondents. Additionally, the second, third, fourth, sixth, and seventh respondents were ordered to pay various amounts for their conduct on 14 September 2011, with the first respondent ordered to pay $50,000 for being vicariously liable for the conduct of the second, third, fourth, sixth, and seventh respondents, as well as for its official’s conduct at the Ashwood site on 14 September 2011. The proceeding was dismissed in all other respects, and no order as to costs was made.