Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2) [2021] FCA 263

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2) [2021] FCA 263 File number: QUD 388 of 2016

Judge: COLLIER J

Date of judgment: 23 March 2021

Catchwords: INDUSTRIAL LAW – penalty hearing – determination of pecuniary penalties to be imposed – where union officials contravened civil remedy provisions of Fair Work Act 2009 (Cth) – where union contravened civil remedy provision through union official's conduct – quantum of penalties to be imposed – nature and extent of the contravening conduct – whether contravening conduct was serious – whether prior contraventions found subsequent to contravening conduct should be an aggravating factor or disentitle respondents to discount – whether prior contraventions of union justified penalty in the upper range – the relevance of prior contraventions proportionality of penalty to seriousness of contravening conduct – whether divergence in application of Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 – whether contraventions by the fourth respondent involved a course of conduct under s 556 Fair Work Act 2009 (Cth) – whether involvement of senior management an aggravating factor – whether lack of contrition an aggravating factor – genuine belief – "taking the odds" – deterrence as the principal object of imposing civil penalties – whether need for specific deterrence when respondents no longer engaged in union role – where pecuniary penalties imposed on both union officials and union – whether power to make personal payment order and prevent indemnity from union enlivened by application for penalty under s 546 Fair Work Act 2009 (Cth) – whether personal payment orders appropriate