FEDERAL COURT OF AUSTRALIA Australian Building and Construction Commissioner v Bollas [2012] FCA 484 Citation: Australian Building and Construction Commissioner v Bollas [2012] FCA 484 Parties: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v GEORGE BOLLAS File number: VID 319 of 2011 Judge: NORTH J Date of judgment: 30 April 2012 Date of hearing: 30 April 2012 Place: Melbourne Division: FAIR WORK DIVISION Category: No Catchwords Number of paragraphs: 15 Counsel for the Applicant: Mr M Follett Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Ms R Shann Solicitor for the Respondent: Slater & Gordon IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 319 of 2011 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant AND: GEORGE BOLLAS Respondent JUDGE: NORTH J DATE OF ORDER: 30 APRIL 2012 WHERE MADE: MELBOURNE THE COURT DECLARES THAT: 1. On 9 July 2010, the Respondent contravened section 349(1) of the Fair Work Act 2009 (Cth) by recklessly making a false or misleading representation about the obligation of two persons to become members of an industrial association. THE COURT ORDERS THAT: 1. Leave is granted to the Applicant to discontinue this proceeding in relation to the alleged contraventions of ss 346 and 348 of the Fair Work Act 2009 (Cth). 2. A penalty of $2000 be imposed on the Respondent by reason of his contravention of s 349(1) of the Fair Work Act 2009 (Cth) on 9 July 2010. 3. The penalty imposed on the Respondent in order 2 be paid into the Consolidated Revenue Fund of the Commonwealth within 28 days. 4. No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY fair work DIVISION VID 319 of 2011 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant AND: GEORGE BOLLAS Respondent JUDGE: NORTH J DATE: 30 APRIL 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant filed an application in this matter against the respondent alleging contraventions of three sections of the Fair Work Act 2009 (Cth). The parties have now agreed to orders which involve the applicant pursuing only one contravention, namely a contravention of s 349(1)(a) of the Act. 2 In relation to that contravention, the parties by agreement seek a declaration that the respondent's conduct on 9 July 2010 contravened this section, that a pecuniary penalty of $2000 be imposed on the respondent and be paid to the Consolidated Revenue Fund of the Commonwealth within 28 days, and that the applicant have leave to discontinue the proceedings in respect of the allegations of contraventions of ss 346 and 348 of the Act. 3 The parties have filed a statement of agreed facts in respect of the contravention of s 349(1)(a). That section relevantly provides that: A person must not knowingly or recklessly make a false or misleading representation about either of the following: (a) another person's obligation to engage in industrial activity. 4 Section 347(a) defines "engages in industrial activity" as: [I]f the person: (a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association. 5 The circumstances of the contravention of s 349(1)(a) in short compass were that the respondent, who is a member of the Construction, Forestry, Mining and Energy Union and was employed by Brookfield Multiplex Pty Ltd (Brookfield Multiplex) as a construction worker and labourer who performed general labouring duties, was also the workforce occupational health and safety representative at several Brookfield Multiplex sites. 6 On 9 July 2010 at the Penders Grove Primary School site, in Victoria Road Thornbury, the respondent had a conversation with two persons who attended to perform carpentry framing work on behalf of subcontractors on the site. The respondent asked these two persons, Adrian Beer and John Van Kerkhoven whether they were union members and they both responded that they were not. The respondent then said to them: Well, we've got a problem then. Everyone is a member on this Site. It's compulsory to be in the union to work on this Site and you can pack up your tools and go unless you join. 7 As a result of this exchange, Van Kerkhoven left the site saying that he did not intend to join the union. In relation to Beer, the union membership fee was tendered by the subcontractor but refused by the respondent. Beer then also left the site. 8 It is accepted that the statement by the respondent contravened the s349(1)(a) by the representation that it was compulsory for Beer and Van Kerkhoven to be in the union in order to work at the site, and that they would have to leave if they did not join. 9 Initially, the parties agreed that the appropriate penalty for the contravention was $3000. This conclusion was based on the view that the circumstances fell within the midrange of a maximum penalty of $6600. The Court will not interfere with an agreement as to penalty made by the parties provided the penalty is within the permissible range having regard to the contravention, that is to say, that the penalty is not manifestly excessive nor manifestly inadequate. 10 It is not suggested that the respondent has any history of prior contraventions and it is accepted that this was a single contravention in which senior management was not involved. It is also accepted that the respondent has cooperated to the extent of admitting the contravention and by agreeing to a statement of facts. The applicant submits that such actions demonstrate an acceptance of wrongdoing. Clearly enough, there is also a need for general and specific deterrence. 11 It seemed to the Court when the matter was first mentioned that the characterisation of the contravention as midrange may have exaggerated the agreed circumstances of the contravention. The purpose of s 349(1), and the mischief against which it is directed, are concerned with the effect of the representations about the specific factors referred to in that section. The seriousness of the contravention must be judged, at least in part, by the effect of the misrepresentation. It is not the purpose of the section to punish the making of false or misleading representations which have no effect at all. 12 In the circumstances of the present case, the representation did not have the effect of inducing Beer or Van Kerkhoven to comply with the statement made by the respondent that they needed to be members of the union. Van Kerkhoven simply refused to become a member and left the site. Beer also ended up leaving the site. The representations did not have the effect which the respondent intended. There was no evidence before the Court to show that either of them had suffered any damage or injury by for instance failing to have worked for the balance of that day. 13 In those circumstances, it seemed to the Court more appropriate to characterise the contravention as at the lower rather than the midrange on the scale of seriousness of the contravention. The proposed penalty of $3000 would be excessive in a manifest degree and thus outside the permissible range. When the issue was raised with the parties the matter was stood down for a short time and an amended agreement was arrived at which proposed an agreed penalty of $2000. This figure is at the higher end of the low range, but is, it seems to the Court, within the permissible range. 14 No doubt the imposition of a penalty of this amount will have a specific deterrent effect on the respondent. It also serves the purpose of general deterrence provided that one judges the circumstances in which that deterrence is to operate as those in which the representation was not effective and where the targets of the representation did not respond positively to the misleading aspects of the statement. 15 The amount of the penalty will therefore be $2000. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 10 May 2012