Australian Building and Construction Commissioner v Adams

1. Pursuant to s 546(1) of the Fair Work Act 2009 (Cth), there be a penalty imposed on each of the 1st through to 44th and 46th through to 76th respondents for contravening s 417(1)(a) of the Fair Work Act 2009 (Cth) in the sum of $1,400.
2. Pursuant to s 546(3)(a) of the Fair Work Act 2009 (Cth), the penalties be paid to the Commonwealth. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 In Director of the Fair Work Building Inspectorate v Adams [2015] FCA 828, I found that the applicant was entitled to declarations against, and the imposition of pecuniary penalties upon, each of the respondents (not including the 31st and the 75th respondents). Appeals from the orders and judgment were dismissed by a Full Court. See Adams and Others v Director of the Fair Work Building Industry Inspectorate (2017) 351 ALR 379; [2017] FCAFC 228. The Full Court ordered that the matter be remitted to me for hearing and determination of all outstanding questions, which included the question of the imposition of pecuniary penalties on the relevant respondents. 2 On 11 June 2018, following the consideration of the written submissions of the parties and oral submissions made that day, I imposed a pecuniary penalty of $1,400 on each of the relevant respondents, and gave brief ex tempore reasons for so doing. 3 The following is a slightly edited version of the ex tempore reasons then given. 4 The High Court of Australia has made it clear that deterrence is the factor that must steadily be borne in mind when imposing a pecuniary penalty in a case like this. See Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Another (2018) 351 ALR 190; [2018] HCA 3. I have said on other occasions that the seriousness of the contravening conduct must always be considered in assessing the penalty. See Australian Building and Construction Commissioner v McCullough (No 2) [2017] FCA 295. There are also a range of factors that courts take into account to ensure the seriousness of the conduct involved is properly weighted. 5 One of the first factors usually considered is the nature and extent of the loss or damage flowing from a contravention. Submissions have been made about this factor by the parties in their written submissions and also orally this morning. 6 This is one of those cases where there is no particular or special damage pleaded and proved on behalf of the Commissioner. Nonetheless, the Court may properly infer, as I do here, that by absenting themselves from the workplace or not attending work at all as required, the unlawful industrial action of the respondents will have caused the contractors and subcontractors to have suffered loss. But I also infer in the absence of any other evidence about that loss, that it was probably not extensive. 7 In relation to the question of whether there is any prior relevant conduct by any of the respondents, it is not suggested that any of the respondents have previously contravened any industrial laws. 8 It is also of course important to ask whether or not contraventions were deliberate. There is nothing to suggest that the conduct was not deliberate. I infer that it was. There is nothing to suggest, I should add that any respondent, compared with another respondent, was guilty of more deliberate or less deliberate conduct; that there should be, on account of the manner in which respondents conducted themselves, a greater or a lesser penalty imposed on particular respondents. The result is going to be that, in my judgement, a similar penalty should be imposed on each of the numerous respondents. 9 The question of what the industrial context was, for the purposes of imposing a penalty, is something which has particularly agitated counsel in their oral submissions this morning. It is obviously appropriate, when setting a pecuniary penalty, for the Court not to take some blanket position in relation to the imposition of penalties. I am not here talking about general deterrence but I am talking about particular circumstances in which the contraventions occurred. Here I think it is not irrelevant to note that there was in place an order of the Fair Work Commission concerning not taking industrial action which affected all workers. 10 The Full Court's observations, that Ms Millar has drawn attention to, about toolbox meetings in the time before 28 February 2013, are noted by me. This is not a submission made on behalf of the Commissioner that involves revisiting my earlier dismissal of the breach of the other provision of the Fair Work Act 2009 (Cth), but I think the general industrial context in which the contraventions occurred can reasonably be noted. At the same time, the point should also be accepted that there is no evidence to show whether particular respondents were at particular toolbox meetings where, for example, the terms of the Fair Work Commission order were read. 11 But nonetheless I, generally speaking, take that industrial campaign context into account. That is to say, the making of the order and the discussion about a rally and the like in this case are noted. 12 In the result, this is not a case, as I have said in some earlier cases, including McCullough (No 2), where punishment of particular respondents at a specific deterrence level, for example, is required. What the Court does in a case like this, as it did in McCullough (No 2), is send a message to individual persons, even those who have no prior contravention history of the Act, that the taking of unauthorised industrial action comes at a cost. 13 That cost needs to be assessed by the Court and made meaningful. In the circumstances of this case where the maximum penalty that could be imposed on a respondent is $10,200, I consider that a penalty in the sum of $1,400 is reasonable and proportionate to the offending, taking into account the factors I have mentioned, including the fact that these, in each case, are first time contravenors. 14 I am satisfied, in the circumstances, that a penalty in that sum sends the message, by way of general deterrence, to individuals who might find themselves in a similar position to these contravenors here, and provides them with an appropriate disincentive not to contravene the Act. 15 There is no doubt, as a number of courts have said before and I have said before, the taking of action occurs in a highly regulated environment. The Act carries with it the very strong expectation that industrial action will only occur where authorised. Unauthorised action will suffer appropriate penalties. 16 I will therefore impose a pecuniary penalty in the sum of $1,400 in each case. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.