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Industrial law – admitted contravention, s500 Fair Work Act…

…relevance of prior contraventions in assessing seriousness of contravention

In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NEXT DC P2 Project Case) [2022] FCA 37 (31 January 2022), the Australian Building and Construction Commission (ABCC) sought the imposition of a penalty against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for admitted contraventions of s500 of the Fair Work Act 2009 (Cth) (FW Act).

The admitted contraventions were the result of actions taken by CFMMEU employee and officer Stephen Parker at a workplace site in Perth.

While exercising his entry rights in accordance with Part 3-4 of the FW Act, Mr Parker acted in an improper manner by remaining on-site without an escort by a Multiplex representative, and not complying with requests by Multiplex employees to move from where he was standing when the Multiplex employees were unloading doorframes (at [2]).

The CFMMEU was taken to have engaged in the improper conduct because Mr Parker had actual or apparent authority to act on behalf of, and was acting on behalf of, the CFMMEU (at [39]).

Section 500 of the FW Act provides that a permit holder exercising, or seeking to exercise, rights in accordance with the relevant part of the statute must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Section 546 of the FW Act provides for the imposition of pecuniary penalties for contraventions of the FW Act. The court set out the general principles for assessing penalties (at [44]-[49]). Some principles that may be relevant include the objective nature and seriousness of the offending conduct and the particular circumstances of the contravener (at [47]).

A live issue was the role of prior contraventions in assessing the seriousness of the admitted contraventions in this case.

The court followed the Full Court in Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580 and held that prior contraventions may increase the seriousness of a current contravention by evidencing an attitude of disobedience to the law (at [51]).

However, the court also relied on Pattison as support for the position that prior contraventions will not automatically mean that a current contravention is more serious merely because it was committed by a recidivist. Rather, the precise nature of the current contravention must be considered (at [53]).

The ABCC submitted that the CFMMEU is a recidivist offender (at [66]), but the court noted the ABCC had not provided analysis of why a connection should be drawn between previous cases and the present case (at [69]).

Ultimately, Banks-Smith J held that the relatively minor nature of the current contravention did not require heightened deterrence due simply to the more significant prior contraventions of the CFMMEU. These prior contraventions did not relevantly inform the present case (at [87]).

Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email nadia.stojanova@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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