Pattinson v Australian Building and Construction Commissioner

The case of Pattinson v Australian Building and Construction Commissioner involved a dispute regarding civil penalties for contraventions of the Fair Work Act 2009. The dispute arose from an incident at a building site in Frankston, Victoria, where Mr Pattinson, an employee of the contractor Multiplex and a union delegate, made statements to employees of a subcontractor about their obligation to join an industrial association. The Australian Building and Construction Commissioner sought pecuniary penalties against Mr Pattinson and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The primary judge imposed penalties on the respondents, which were later reviewed by the Full Court. The central legal issues before the court were the appropriate application of the principle of proportionality in the imposition of civil penalties, whether the history of contravening should inform the court’s assessment of an appropriate penalty, and whether the total penalty imposed was manifestly excessive. Additionally, the court considered whether cooperation could be treated as a factor in mitigation warranting a discount on penalty in the absence of contrition.

The Full Court examined the principle of proportionality and its application to civil penalties, noting the divergent views within the court. The court emphasised the need for caution in using the term "proportionality" to avoid confusion and to ensure a proper analysis of the principles involved. It discussed the submissions regarding the contravenor’s history of contraventions and the assessment of the gravity of the contravention. The court also deliberated on whether imposing maximum penalties on a serial recidivist was justified and whether the total penalty was manifestly excessive. Furthermore, the court considered whether cooperation without contrition could warrant a discount on the penalty. After careful consideration, the court found that the penalties imposed by the primary judge were manifestly excessive and set aside the orders made by the primary judge, substituting new penalty amounts for the contraventions.

The court's final orders included allowing the appeal and dismissing the Notice of Contention. The penalties imposed on the first respondent were reduced to $4,000 and $500, and on the second respondent to $38,000 and $2,000. The new penalty amounts were intended to reflect a more proportionate and balanced approach to the contraventions, taking into account the relevant principles and the circumstances of the case. The court’s decision highlighted the importance of a careful and principled approach to the imposition of civil penalties, ensuring they are fair and just in the context of each individual case.