Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468

Federal Court of Australia Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468 File number: WAD 185 of 2019

Judgment of: MCKERRACHER J

Date of judgment: 24 November 2021

Catchwords: INDUSTRIAL LAW – admitted contravention of s 500 of the Fair Work Act 2009 (Cth) – imposition of an appropriate penalty under s 546(1) of the Fair Work Act on the union for the improper conduct of its officials – where instant contravention is relatively minor – whether general history of prior contraventions warrants imposition of the highest possible penalty to ensure effective deterrence – role of proportionality in assessment of civil penalties – relevance of prior contraventions in assessing the serious of the instant contravention – Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580 applied

Legislation: Crimes Act 1914 (Cth) s 4AA Fair Work Act 2009 (Cth) ss 346(a), 348, 500, 539(2) (Item 25), 512, 513(1)(g), 546, 546(1), 546(2), 550, 550(2)(a), 550(2)(c), 793, 793(1), 793(2), Pt 3-4 Occupational Safety and Health Act 1984 (WA) ss 3, 19, 22 Occupational Safety and Health Regulations 1996 (WA) regs 3.17, 3.18

Cases cited: Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268 Australian Building and Construction Commissioner v Australian Workers' Union [2021] FCA 861; (2021) 308 IR 195 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Webb Dock Case) [2017] FCA 62 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 (The Footscray Station Case) [2017] FCA 1555; (2017) 274 IR 460 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] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15; (2018) 258 FCR 158 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union ("Cardigan St Case") [2018] FCA 957 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88; (2018) 262 FCR 473 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) [2018] FCA 163; (2018) 358 ALR 725 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The College Crescent Case) [2020] FCA 757; (2020) 295 IR 446 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case) [2020] FCA 1742 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070; (2020) 299 IR 231 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Toowoomba Bypass Case) [2021] FCA 1128 Australian Building and Construction Commissioner v Harris [2017] FCA 733 Australian Building and Construction Commissioner v Menon [2020] FCA 1418 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Ophthalmic Supplies v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; (2018) 265 FCR 208 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203; (2020) 281 FCR 365 Cozadinos v Construction, Forestry, Mining and Energy Union [2013] FCA 1243 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160 Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668; (2015) 147 ALD 373 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 (The Mitcham Rail Case) [2015] FCA 1173 Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432; (2015) 146 ALD 75 Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29; (2011) 202 IR 467 Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; (2019) 270 FCR 39 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580 Saliba v Shepherd [2006] WASCA 228 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR 41-076 WorkCover Authority (NSW) v Rexma Pty Ltd [2008] NSWIRComm 78; (2008) 172 IR 210