Gregor v Berardi - [2010] FMCA 805

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GREGOR v BERARDI & ANOR

[2010] FMCA 805

INDUSTRIAL LAW – Penalty hearing – unlawful building industrial action – admitted contraventions – considerations on penalty – agreed penalty.

Building and Construction Industry Improvement Act 2005 (Cth), s.38

Minister for Industry, Tourism & Resources v Mobil Oil [2004] FCA FC 72
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Construction Forestry Mining & Energy Union v Coal & Allied Operations Pty Ltd (No.2) (1999) 94 IR 231
Australian Ophthalmic Supplies Pty Limited v McAlary-Smith (2008) 165 FCR 560
Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65

Applicant:

MURRAY GREGOR

First Respondent:

DANNY BERARDI

Second Respondent:

CONSTRUCTION FORESTRY, MINING AND ENERGY UNION

File Number:

MLG 85 of 2010

Judgment of:

O'Sullivan FM

Hearing date:

20 October 2010

Date of Last Submission:

20 October 2010

Delivered at:

Melbourne

Delivered on:

20 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr R.Dalton

Solicitors for the Applicant:

Office of the Australian Building and Construction Commissioner

Counsel for the First and Second Respondents:

Ms E. Walters

Solicitors for the First and Second Respondents:

Construction, Forestry, Mining and Energy Union

DECLARATION AND ORDERS

A penalty of $5,000 be imposed on the first respondent for his contravention of s.38 of the Building and Construction Industry Improvement Act 2005 arising from his conduct on 7 October 2008 when he imposed a ban on the performance of building work at the B Central student apartments project at 28 Queens Avenue, Hawthorn.
A penalty of $25,000 be imposed on the second respondent for its contravention of s.38 of the Building and Construction Industry Improvement Act 2005 arising from its vicarious liability for the conduct of the first respondent when on 7 October 2008 he imposed a ban on the performance of building work at the B Central student apartments project at 28 Queens Avenue, Hawthorn.
The penalties be paid to the Consolidated Revenue Fund within 28 days of the date of this Order.
The proceedings be otherwise dismissed with no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 85 of 2010

MURRAY GREGOR

Applicant

And

DANNY BERARDI

First Respondent

CONSTRUCTION FORESTRY, MINING AND ENERGY UNION

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

On 22 January 2010 proceedings were commenced against Danny Berardi (“the first respondent”) and the Construction Forestry, Mining and Energy Union (CFMEU) (“the second respondent”) alleging breaches of the Building and Construction Industry Improvement Act 2005 (“the BCII Act”). Murray Gregor (“the applicant”) an inspector appointed pursuant to s.57 of the BCII Act, was substituted as the applicant in these proceedings by order made on 10 March 2010.
The applicant alleged conduct in breach of the BCII Act by the respondents at a building site in Victoria in October 2008.

The application

After the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gregor v Berardi

Details

AGLC: Gregor v Berardi [2010] FMCA 805
Case: [2010] FMCA 805
Decision Date

CaseChat Overview and Summary

The Federal Magistrates Court of Australia was tasked with resolving a dispute between Murray Gregor, an inspector appointed under the Building and Construction Industry Improvement Act 2005 (BCII Act), and Danny Berardi, an organiser of the Construction, Forestry, Mining and Energy Union (CFMEU). Gregor sought penalties against Berardi and the CFMEU for their involvement in unlawful industrial action at a building site in Victoria in October 2008. The CFMEU was held vicariously liable for Berardi's actions. The primary legal issue was to determine the appropriate penalty for the contravention of section 38 of the BCII Act, which prohibits engaging in unlawful industrial action.

The court considered several factors in determining the penalty, including the nature and extent of the conduct, the circumstances of the contraventions, whether the breaches were deliberate, and the need for both specific and general deterrence. The parties had agreed on the penalties to be imposed, with Berardi facing a penalty of $5,000 and the CFMEU facing a penalty of $25,000. The court noted that the agreed penalties were within the permissible range and appropriate given the circumstances, including the limited duration of the unlawful conduct and the respondents' cooperation with the proceedings.

In its judgment, the court accepted the agreed penalties, emphasizing the importance of promoting settlement and the relevance of the regulator's view on penalty. The court also highlighted the statutory purposes of the BCII Act and the need for general deterrence. The final orders imposed the agreed penalties on Berardi and the CFMEU, requiring them to pay the penalties within 28 days. The proceedings were otherwise dismissed with no order as to costs.

Orders