Helal v Brookfield Multiplex Limited

Case [2012] FCA 653


FEDERAL COURT OF AUSTRALIA

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.
Legislation: Building and Construction, Industry Improvement Act 2005 (Cth) ss 5, 43(1)(a), 57, 69
Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth) s 21
Cases cited:

Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426
Temple v Powell (2008) 169 FCR 169
Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Ponzio v B&P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Hills v Sutton [2007] FCA 2033
Wells v Locarno Management Pty Ltd [2008] FCA 1034 Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2012] FCA 189
Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479
Hoare v R (1989) 167 CLR 348
Veen v R (No 1) (1979) 143 CLR 458
Veen v R (No 2) (1988) 164 CLR 465
Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308
Markarian v R (2005) 228 CLR 357
Setka v Gregor(No 2) [2011] FCAFC 90
BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336

Cozadinos v Construction, Forestry, Mining and Energy Union [2010] FCA 48

Date of hearing: 30 April 2012
Place: Melbourne
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 30
Counsel for the Applicant: Mr J Snaden
Solicitor for the Applicant: Ashurst Australia
Counsel for the First Respondent: The first respondent did not appear
Counsel for the Second and Third Respondents: Mr C Dowling
Solicitor for the Second and Third Respondents: Slater & Gordon

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 469 of 2010

BETWEEN:

LINDA HELAL
Applicant

AND:

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…

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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.