Australian Building and Construction Commissioner v Gray & Anor [2011] FMCA 919 (18 November 2011)

Last Updated: 19 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v GRAY & ANOR

[2011] FMCA 919

INDUSTRIAL LAW – Contravention of s.348 of the Fair Work Act 2009 (Cth) – agreed penalty imposed.

Fair Work Act 2009 (Cth), s.348

ABCC v Mitchell & Ors [2011] FMCA 622 Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556

Applicant:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent:

TROY GRAY

Second Respondent:

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

File Number:

MLG 176 of 2011

Judgment of:

Hartnett FM

Hearing date:

18 November 2011

Delivered at:

Melbourne

Delivered on:

18 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr Follett

Solicitors for the Applicant:

Office of the Australian Building and Construction Commissioner

Counsel for the Second Respondent:

Mr Borenstein

Solicitors for the Second Respondent:

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

THE COURT ORDERS THAT:

(1) A penalty of $10,000 is imposed on the Second Respondent for its contravention of s.348 of the Fair Work Act 2009 (Cth) which occurred on 23 September 2009.
(2) The penalty imposed on the Second Respondent is to be paid into the Consolidated Revenue Fund of the Commonwealth within 28 days of the date of this Order.
(3) The Applicant have leave to discontinue the proceedings against the First Respondent.
(4) There be no order as to costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 176 of 2011

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

And

TROY GRAY

First Respondent

And

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with the Australian Building and Construction Commissioner (“ABCC”) filing an application and statement of claim on 14 February 2011. I have read the material which includes a Statement of Agreed Facts filed on 15 November 2011 and submissions as to penalty filed by the applicant on 15 November 2011.
   I have heard submissions this day from each of the applicant and the second named respondent.
2. The Court has had regard to the second respondent’s admission, by reference to the terms of the Statement of Agreed Facts dated 13 July 2011 (but filed 15 November 2011), that it contravened s.348 of the Fair Work Act 2009 (Cth) (“the Act”) on 23 September 2009 by organising and taking industrial action against various workers engaged at a construction site in Docklands, Victoria, with the intention of coercing those workers to become members of the second respondent.
3. The second respondent accepts, by reason of that conduct which involved some workers and the Electrical Trades Union (“ETU”) delegate engaging in industrial action with the intent to coerce industrial activity and having regard to the surrounding circumstances and facts leading up to that contravention, that an appropriate penalty to be imposed on it is $10,000, payable to the Consolidated Revenue Fund of the Commonwealth.
4. In exchange for this admission and an agreement as to an appropriate penalty, the applicant has agreed to (and does) seek leave to discontinue the proceedings against the first respondent with no order as to the costs in each case.
5. The manner in which this Court deals with a matter proceeding in this way has recently been articulated by Tracey J in Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556 at paragraphs 67 and 68. Those paragraphs appear also in paragraph 8 of the reasons of Raphael FM in the decision of ABCC v Mitchell & Ors [2011] FMCA 622. They are as follows:

“[67] The approach of the court to proposals of this kind is now well established. It was propounded by the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 and was summarised by Kenny J in White v Construction, Forestry, Mining and Energy Union [2011] FCA 192 at [5] as follows:

(a) it is the responsibility of the Court to determine the appropriate penalty;

(b) determining the amount of penalty is not an exact science;

(c) within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another;

(d) there is public interest in promoting settlement of litigation, particularly where it is likely to be lengthy;

(e) the view of the regulator, as a specialist body, is a relevant, but not determinative, consideration;

(f) in determining whether the proposed penalty is appropriate, the Court examines all of the circumstances of the case; and

(g) where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure, in the Court’s view, is appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if it is within the permissible range.

[68] A penalty will be within the permissible range if it is neither manifestly inadequate nor manifestly excessive: see Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 at [129] (per Jessup J).”

6. I consider the proposed and accepted penalty to fall within the permissible range. The sum of $10,000 for one contravention of s.348 of the Act, is 30% of the maximum penalty. Whilst there is no evidence of any remorse, the participation of the second respondent in negotiations which have led to the quantification of an agreed penalty has saved the costs of a trial.
7. I accept Counsel for the applicant’s submission that:

“General and specific deterrence are both important factors in this case. The Second Respondent is a repeat offender, so needs to be specifically deterred by reference to a penalty of appropriate severity. And more generally, in order to secure the objectives of the FW Act and the right to freedom of association, “it is necessary that contraventions [of those provisions] should be visited with penalties which will serve to deter others from similar misconduct. Penalties must be imposed at a meaningful level if they are to serve as a general deterrent to others who may be disposed to engage in proscribed conduct”: Alfred v CFMEU [2011] FCA 556 at [90].”

8. Thus, the Court makes the orders proposed by the parties.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 14 December 2011