Draffin v Construction, Forestry, Mining and Energy Union

[2007] FCA 2011

FEDERAL COURT OF AUSTRALIA

Draffin v Construction, Forestry, Mining and Energy Union [2007] FCA 2011

JOHN WILLIAM DRAFFIN v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, STEVE ALLEN, GERARD BENSTEAD, BILL OLIVER AND WALTON CONSTRUCTION PTY LTD

VID 221 OF 2007

RYAN J
10 DECEMBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 221 OF 2007

BETWEEN:

JOHN WILLIAM DRAFFIN
Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

STEVE ALLEN
Second Respondent

GERARD BENSTEAD
Third Respondent

BILL OLIVER
Fourth Respondent

WALTON CONSTRUCTION PTY LTD
Fifth Respondent

JUDGE:	RYAN J
DATE OF ORDER:	10 DECEMBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        Subject to the order made in paragraph 2:

(a)a penalty of $40,000 be imposed on the fifth respondent for contravening s 45 of the Building and Construction Industry Improvement Act 2005 (Cth); and

(b)a penalty of $10,000 be imposed on the fifth respondent for contravening s 298K(2)(d) of the Workplace Relations Act 1996 (Cth).

2.The fifth respondent is not obliged to pay one half of the said penalties if it has not been adjudged to have breached, within 12 months of the date of this order, any provision of the Building and Construction Industry Improvement Act 2005 (Cth) or, any freedom of association provision of the Workplace Relations Act 1996 (Cth).

3.Each party bear its own costs in relation to the proceeding.

4.One half of the above penalty be paid into the Consolidated Revenue Fund within 30 days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 221 OF 2007

BETWEEN:

JOHN WILLIAM DRAFFIN
Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

STEVE ALLEN
Second Respondent

GERARD BENSTEAD
Third Respondent

BILL OLIVER
Fourth Respondent

WALTON CONSTRUCTION PTY LTD
Fifth Respondent

JUDGE:	RYAN J
DATE:	10 DECEMBER 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this matter the applicant and the fifth respondent have furnished the Court with a statement of agreed facts to which reference should be made for an understanding of these reasons.  Each party has filed written submissions, in general supporting the imposition of the penalty which is proposed on each side as an appropriate resolution of the issues between the applicant and the fifth respondent.  It is clear that the contraventions which the fifth respondent has admitted had an effect over a relatively limited period of three to four weeks and impinged on only three employees of the subcontractor, Monjon Australia Pty Ltd, which was the victim of the contraventions which are the subject of these proceedings. 

2. It is agreed that the fifth respondent has no prior convictions for contraventions of a relevant kind.  The fifth respondent, at an early point conceded that it had contravened the provisions in question.  As well, it has co-operated with the applicant and the Australian Building and Construction Commission in the investigation of the offences and the presentation of material to this Court.  It has also instituted, I have been told, educational measures with a view to preventing a repetition of similar contraventions. 

3. In these circumstances, the applicant and the fifth respondent have agreed on a penalty of $50,000 of which half is to be suspended and excused in the event of no further breaches of similar provisions occurring in the ensuing 12 months.  In my view, a penalty of $50,000 subject to a prospect of its reduction by half in the circumstances which I have described is within the range appropriate to the admitted contraventions which, under the legislation, attract a maximum penalty of $143,000.

4. The penalty which I propose to accept should have the general deterrent effect which the authorities to which I have been referred indicate should inform the imposition of sentences in this area. 

5. Accordingly, I shall order that:

   1.        Subject to the order made in paragraph 2:

   (a)a penalty of $40,000 be imposed on the fifth respondent for contravening s 45 of the Building and Construction Industry Improvement Act 2005 (Cth); and

   (b)a penalty of $10,000 be imposed on the fifth respondent for contravening s 298K(2)(d) of the Workplace Relations Act 1996 (Cth).

   2.The fifth respondent is not obliged to pay one half of the said penalties if it has not been adjudged to have breached, within 12 months of the date of this order, any provision of the Building and Construction Industry Improvement Act 2005 (Cth) or, any freedom of association provision of the Workplace Relations Act 1996 (Cth).

   3.        Each party bear its own costs in relation to the proceeding.

   4.One half of the above penalty be paid into the Consolidated Revenue Fund within 30 days.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:
Dated:        13 December 2007

Counsel for the Applicant:	Mr P O'Grady
Solicitor for the Applicant:	Deacons
Counsel for the Fifth Respondent:	Mr J Forbes
Solicitor for the Fifth Respondent:	Maddocks
Date of Hearing:	10 December 2007
Date of Judgment:	10 December 2007