Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 File number: NSD 361 of 2016

Judge: FLICK J

Date of judgment: 18 October 2018

Catchwords: INDUSTRIAL LAW – penalties – contraventions of ss 340, 343, 494, 500 of the Fair Work Act 2009 (Cth) – quantification of penalties – primary objective of deterrence – considerations to be taken into account in quantifying penalties – consideration of relevance of maximum penalty – requirement to impose separate penalties for separate contraventions – imposition of penalties where multiple contraventions arise from a common set of facts – application of the course of conduct principle – application of the totality principle – consideration of the need for parity in penalties – consideration of relevance of loss caused by contravening conduct – consideration of relevance of the size and nature of a contravening organisation – consideration of relevance of submissions in the process of quantifying penalties

Legislation: Fair Work Act 2009 (Cth) ss 340, 343, 355, 417, 421, 494, 500, 545, 546, 556, 557 Trade Practices Act 1974 (Cth) s 80

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] FCAFC 53, (2017) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, (2018) 273 IR 211 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977, (2010) 199 IR 373 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 Gava [2018] FCA 1480 Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 Australian Building and Construction Commissioner v McCullough (No 2) [2017] FCA 295 Australian Building and Construction Commissioner v Parker [2017] FCA 564, (2017) 266 IR 340 Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082, (2017) 270 IR 165 Australian Building and Construction Commissioner v Pauls [2017] FCA 843 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Competition and Consumer Commission v Aveling Homes Pty Ltd [2017] FCA 1470 Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 1387, (1999) 95 FCR 114 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54, (2013) 250 CLR 640 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, (2008) 165 FCR 560 Australian Securities and Investments Commission v Cassimatis (No 9) [2018] FCA 385 Australian Securities and Investments Commission v Wealth & Risk Management Pty Ltd (No 2) [2018] FCA 59 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39, (2010) 194 IR 461 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR 482 Darlaston v Parker [2010] FCA 771, (2010) 189 FCR 1 Darlaston v Parker (No 2) [2010] FCA 1382, (2010) 200 IR 353 Director of Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432, (2014) 146 ALD 75 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 [2015] FCA 226 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Fair Work Ombudsman v Group Property Services Pty Ltd (No 2) [2017] FCA 557 Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 4) [2017] FCA 580 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53, (2018) 356 ALR 389 Kelly v Fitzpatrick [2007] FCA 1080, (2007) 166 IR 14 Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2018] NSWCA 39 Registered Organisations Commissioner v Transport Workers' Union of Australia [2018] FCA 32 Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62, (2014) 221 FCR 153 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20, (2012) 287 ALR 249 Standen v Feehan (No 2) [2008] FCA 1574, (2008) 177 IR 276 United Firefighters Union of Australia v Country Fire Authority (No 2) [2017] FCA 1614