Helal v Brookfield Multiplex Limited [2012] FCA 653
Citation:
Helal v Brookfield Multiplex Limited [2012] FCA 653
Parties:
LINDA HELAL v BROOKFIELD MULTIPLEX LIMITED (ACN 008 687 063), CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and ROBERT ANTHONY MATES
File number:
VID 469 of 2010
Judge:
BROMBERG J
Date of judgment:
21 June 2012
Catchwords:
INDUSTRIAL LAW – Building and Construction Industry Improvement Act 2005 (Cth) – coercive threat demanding employment of a “building employee” – imposition of pecuniary penalty – agreed penalty proposed – relevant considerations in assessing whether proposed penalty is appropriate.
BROOKFIELD MULTIPLEX LIMITED (ACN 008 687 063) First Respondent
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Second Respondent
ROBERT ANTHONY MATES Third Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
21 JUNE 2012
WHERE MADE:
MELBOURNE
THE COURT DECLARES THAT:
1.By the conduct of its officer on 1 August 2009, the second respondent, in contravention of s 43(1) of the Building and Construction Industry Improvement Act 2005 (Cth), threatened to organise or take action with intent to coerce Permark Group Pty Ltd to employ each of Matthew Davis…
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.
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AGLC
Helal v Brookfield Multiplex Limited [2012] FCA 653
Case
[2012] FCA 653
Decision Date
CaseChat Overview and Summary
The case of Helal v Brookfield Multiplex Limited involved the Australian Building and Construction Commission (ABCC) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) in a dispute over alleged contraventions of the Building and Construction Industry (BCII) Act 2005. The CFMEU was accused of engaging in coercive conduct, a breach of section 43(1) of the BCII Act, which occurred on 1 August 2009. The ABCC sought penalties and declarations against the CFMEU for these contraventions. The central issue before the court was whether the penalty proposed by the parties, which was $30,000 for a single contravention, was appropriate given the circumstances and prior history of similar contraventions by the CFMEU.
The court found that while there was a significant history of similar coercive conduct by the CFMEU, it was necessary to consider whether the proposed penalty was disproportionate to the gravity of the specific offence. The court acknowledged the importance of deterrence and the public interest in encouraging settlements but also recognised the need to avoid excessive penalties. After considering the deliberate and serious nature of the conduct, its short-lived intimidatory effect, and the absence of loss or damage, the court concluded that the penalty was neither manifestly inadequate nor excessive. The court also noted the cooperation shown by the CFMEU and the regulator's view that the agreed penalty was appropriate. Therefore, the court found the proposed penalty of $30,000 to be appropriate.
The court imposed a penalty of $30,000 on the CFMEU for the contravention of section 43(1) of the BCII Act and made a declaration in the terms agreed by the parties. Additionally, the court ordered that there be no order as to costs, reflecting the settlement reached by the parties. The court’s decision balanced the need for deterrence and appropriate penalties with the importance of encouraging settlements and avoiding disproportionate penalties.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Inspector set out in its submissions that there have been at least 35 cases in which the CFMEU had been found to have contravened the BCII Act, and 12 of those cases involved unlawful coercive conduct. It is unnecessary that each of the prior contraventions relied upon are set out. Counsel for the CFMEU submitted that, given the relevant conduct in this case occurred on 1 August 2009, events which occurred after that date, cannot properly be considered prior contraventions. I accept that submission. However, I nevertheless accept that the CFMEU has a long history of engaging in coercive conduct, relevantly similar to the kind in question in this case. Accordingly, those prior contraventions have weighed heavily in my consideration as to whether the proposed penalty is appropriate. However, I have also taken into account that prior contraventions should not lead to the imposition of a penalty that is disproportionate to the gravity of the instant offence: Veen v R (No 2) (1988) at 477 (Mason CJ, Brennan, Dawson and Toohey JJ).Conclusion as to Penalty The imposition of a penalty is a discretionary exercise, involving the synthesising of relevant factors, in order to arrive at a conclusion as to where the contravenor’s conduct sits on a scale of wrongdoing set by reference to the maximum penalty which could be imposed. Taking that approach to the question of whether the proposed penalty is appropriate, in the context of the relevant factors earlier identified, I have concluded that it is. The proposed penalty is neither manifestly inadequate nor manifestly excessive. The conduct concerned was deliberate and serious but its intimidatory effect was short lived and it caused no loss or damage. I harbour a concern as to whether the penalty which I will impose is sufficiently meaningful to operate as a deterrent upon the CFMEU to engage again in conduct of this kind. However, I may only impose a penalty which is appropriate and proportionate to the gravity of the contravening conduct. The co-operation shown by the CFMEU, mitigates against the imposition of a harsher penalty than that which has been agreed. I have also arrived at my conclusion, having taken into account the regulator’s view that the agreed penalty is appropriate. Additionally, there is, as I have indicated earlier, a strong public interest in courts exercising restraint in overly scrutinising proposed settlements, so that settlements may be encouraged and potentially lengthy and expensive litigation avoided. I will impose a penalty of $30,000 upon the CFMEU in relation to a single contravention of s 43(1) of the BCII Act.Declarations and other Orders There is a proper and appropriate basis, including that of advancing the public interest, for the Court to exercise its discretionary power to make a declaration under s 21 of the Federal Court of Australia Act 1976 (Cth). I will make a declaration in the terms agreed by the parties which declares the CFMEU’s breach of s 43(1) of the BCII Act. I will also make the consequential orders proposed by the parties, including that there be no order as to costs.
Ratio Decidendi
Legal Principle Established
I will impose a penalty of $30,000 upon the CFMEU in relation to a single contravention of s 43(1) of the BCII Act.Declarations and other Orders There is a proper and appropriate basis, including that of advancing the public interest, for the Court to exercise its discretionary power to make a declaration under s 21 of the Federal Court of Australia Act 1976 (Cth). I will make a declaration in the terms agreed by the parties which declares the CFMEU’s breach of s 43(1) of the BCII Act. I will also make the consequential orders proposed by the parties, including that there be no order as to costs.