FEDERAL COURT OF AUSTRALIA
Duffy v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 299
INDUSTRIAL RELATIONS – penalty hearing – contravention of s 38 of the Building Industry Improvement Act 2005 (Cth) – relevant considerations in determining appropriate penalty – penalty determined
Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 49(2)
Crimes Act 1914 (Cth) s 4AADuffy v Construction, Forestry, Mining and Energy Union [2008] FCA 1804, referred to
Australian Competition & Consumer Commission v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2004] FCA 517, referred to
Stuart-Mahoney v Construction, Forestry, Mining & Energy Union [2008] FCA 1426, referred toTERRY DUFFY v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
VID 687 of 2007
MARSHALL J
31 MARCH 2009
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 687 of 2007
BETWEEN: TERRY DUFFY
ApplicantAND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
31 MARCH 2009
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.A penalty of $5,500 is imposed on the respondent for contravening s 38 of the Building and Construction Industry Improvement Act 2005 (Cth).
2.The penalty imposed is to be paid into the Consolidated Revenue Fund on or before 30 April 2009.
3.The application is otherwise dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 687 of 2007
BETWEEN: TERRY DUFFY
ApplicantAND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Respondent
JUDGE:
MARSHALL J
DATE:
31 MARCH 2009
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 28 November 2008, the Court published its reasons for judgment on liability issues in this proceeding. In that judgment the Court found that the respondent Union contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the Act”). This judgment deals with the question of the penalty, if any, which should be imposed on the Union for that contravention. These reasons should be read together with the reasons for judgment in the substantive matter (Duffy v Construction, Forestry, Mining and Energy Union [2008] FCA 1804).
THE CONTRAVENTION
The Union engaged in unlawful industrial action under the Act by the imposition by its organisers of limited and short lived bans on the performance of work at a building site called the University Hill site. The relevant portion of the judgment in the substantive matter is set out at [16] to [25].
The following points from that part of the substantive judgment are of particular current relevance:
(a) 20 October 2005
·a ban was placed on work at the site because of the lack of a female toilet whilst a female worker was present and the absence of a site contamination report;
·after 9.30 am no work was performed on the site, other than by two employees of the head contractor;
·there…
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- Case
- [2009] FCA 299
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Union's actions in imposing bans on work constituted an unlawful contravention of the Act. The court also considered the circumstances surrounding the bans, including the absence of a contamination report and the lack of a female toilet on site, and the relatively short duration and minimal impact of the bans. The court had to balance the importance of deterrence with the specific circumstances of the case, including the Union's efforts to educate its officials about the effects of the Act post-incident.
The court held that the conduct of the Union through its organisers was unlawful. While the circumstances, such as the absence of a contamination report and a female toilet, and the short duration and minimal effect of the bans, did not entirely excuse the breach, the organisers had reacted to incompetent management by the head contractor. The court noted that the bans were deliberate and imposed in response to management incompetence, despite alternative courses of action being available. The court found that deterrence was still important, both general and specific, and that a monetary penalty was appropriate despite the relatively minor nature of the breach compared to previous cases. The court imposed a penalty of $5,500, considering the totality principle and the lesser significance and seriousness of the current breach.
The court made an order for a penalty of $5,500 to be imposed on the respondent for contravening section 38 of the Act. The penalty was to be paid into the Consolidated Revenue Fund by a specified date. The application was dismissed in all other respects.
Orders
Orders of the court
1. A penalty of $5,500 is imposed on the respondent for contravening s 38 of the Building and Construction Industry Improvement Act 2005 (Cth).
2. The penalty imposed is to be paid into the Consolidated Revenue Fund on or before 30 April 2009.
3. The application is otherwise dismissed.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MARSHALL J
The Union’s counsel further submitted that deterrence is of less significance in this case than many others because of the circumstances — the absence of a contamination report and a female toilet and the short lived bans.CONSIDERATION The conduct of the Union through its organisers was unlawful. The effect of this case is that it is unlawful to place a ban on work at a building site even though there may be a doubt as to the safety of working on that site (in the absence of a soil contamination report) and even though the head contractor did not provide a female toilet. The circumstances do not entirely excuse the breach. The matter could have been the subject of an urgent hearing in the Australian Industrial Relations Commission (“the Commission”). Also it may have been referred to State occupational health and safety authorities. However, the circumstances show that the organisers reacted to incompetent management by the head contractor. In fact the head contractor had a site contamination report but its Site Manager did not know. It was also inexcusable in this modern age for there not to be a female toilet on the site. The bans, although invited by incompetent and bizarre management, were nonetheless illegal bans. However, they lasted a very short period of time, had minimal effect and occurred at a very early stage of the project where no significant disruption or inconvenience occurred. The contravention was deliberate in the sense that it was imposed in a calculated way in response to management incompetence. There is no evidence that senior management of the Union was involved in the placing of the ban. Within about six months of the relevant events, the Union organised a seminar designed to educate its officials about the effects of the Act. This conduct indicates a desire to avoid repetition of conduct in breach of the Act; see Stuart-Mahoney v Construction, Forestry, Mining & Energy Union [2008] FCA 1426 at [53] per Tracey J. There is similar previous conduct, most relevantly in Stuart-Mahoney. The events of which occurred about a fortnight before the current events, although that case is not a prior contravention it shows that similar conduct had been undertaken in the past. I say “similar” in a rather loose sense because the imposition of the overtime ban in that matter was far more serious and had far more widespread effects than the transient bans in this matter. Deterrence is important, both general and specific. That is why, notwithstanding the conduct of the head contractor which led to the short lived bans of little consequence, there should be some monetary penalty imposed to reflect that a statutory provision has been breached. It is not as if there was no alternative but to impose a ban. Focussed talks with the head contractor at a high level and/or a referral of the issue to the Commission and/or Worksafe inspectors were alternative available courses of action. In Stuart-Mahoney, Tracey J imposed a penalty of $20,000 for breach of s 38 of the Act in respect of events occurring about the same time as the instant events. Even taking into account the application of the totality principle in that case, the significance and seriousness of the current breach are far less than the circumstances considered by Tracey J. Accordingly, I consider a fine of $5,500 to be appropriate in the current circumstances.