Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 File number: WAD 334 of 2016

Judge: BARKER J

Date of judgment: 14 June 2018

Catchwords: INDUSTRIAL LAW – where declarations made that respondents contravened sections 346(a), 348 and 500 of the Fair Work Act 2009 (Cth) – appropriate pecuniary penalties – where only one penalty imposed in respect of the three civil penalty provisions pursuant to s 556 – where the lead contravention is intent to coerce in breach of s 348 – where penalties should reflect both specific and general deterrence – where the first respondent's contraventions were deliberate and no contrition shown – penalty of 75% of the maximum imposed on first respondent – contravention record of second respondent regarded – where second respondent must do more to ensure its officials meet standards of the Act – penalty of 80% of maximum imposed on second respondent

Legislation: Fair Work Act 2009 (Cth) ss 3, 340, 342, 346(1), 348, 417(1), 421(1), 497, 500, 503, 546(1), 546(3)(a), 550(1), 556, 793, Ch 3, Pt 3-1 and Pt 3-4 Fair Work (Building Industry) Act 2012 (Cth) Workplace Relations Act 1996 (Cth) (repealed) Fair Work Bill 2008 (Cth)

Cases cited: Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 271 IR 321; [2017] FCAFC 113 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Childrens' Hospital Contraventions Case) [2017] FCA 491 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2017] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3) [2018] FCA 564 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) [2018] FCA 163 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 197 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Others (2017) 249 FCR 458; [2017] FCAFC 53 Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 Australian Building and Construction Commissioner v McCullough (No 2) [2017] FCA 295 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8 Construction, Forestry, Mining and Energy Union [2017] FWC 5824 Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2017] FCA 1166 Darlaston v Parker (No 2) (2010) 200 IR 353; [2010] FCA 1382 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Director of the Fair Work Building Industry Inspectorate v Bragdon (No 2) [2015] FCA 998 Director of the Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union and Another (2014) 140 ALD 337; [2014] FCA 160 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union and Another (No 2) (2015) 234 FCR 451; [2015] FCA 407 Director of the Fair Work Building Industry Inspectorate v Stephenson and Others (2014) 146 ALD 75; [2014] FCA 1432 Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 1225 Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39; [2016] FCAFC 72 Esso Australia Pty Ltd v Australian Workers' Union (M185/2016); Australian Workers' Union v Esso Australia Pty Ltd (M187/2016) (2017) 350 ALR 404; [2017] HCA 54 McDonald v The Queen (1994) 48 FCR 555; [1994] FCA 108 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61; [2008] FCA 1426 Temple v Powell (2008) 169 FCR 169; [2008] FCA 714 The Attorney-General v Tichy (1982) 30 SASR 84 The Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Others; Construction, Forestry, Mining and Energy Union and Another v Director, Fair Work Building Industry Inspectorate and Another (2015) 258 CLR 482; [2015] HCA 46 The Queen v McInerney (1986) 42 SASR 111 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Zotos v The Queen [2014] VSCA 324