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

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

Appropriate pecuniary penalties must be set having regard to the seriousness of each contravention, considering the need for deterrence (both specific and general), proportionality to the conduct, the size and history of the union, and the role of individual contraveners. Where overlapping contraventions arise from the same conduct, only one penalty is imposed pursuant to section 556 of the Fair Work Act 2009 (Cth). Personal payment/non-indemnification orders were refused as they were not adequately notified to the respondents before judgment on liability, risking procedural unfairness.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Jade Ingham; Second Respondent: Michael Myles; Third Respondent: Andrew Sutherland; Fourth Respondent: Chad Bragdon; Fifth Respondent: Kevin Griffin; Sixth Respondent: Construction, Forestry, Maritime, Mining and Energy Union
Jurisdiction
Australia
Judgment Date
23 March 2021
Procedural Posture
Penalty Hearing in Civil Proceeding Under Fair Work Act 2009 (cth) / Determination of Pecuniary Penalties Following Liability Judgment
Outcome
Pecuniary penalties imposed as detailed in orders; application for personal payment/non-indemnification orders refused; proceeding otherwise dismissed.
Legal Topics
Pecuniary Penalties, Contravention of Fair Work Act, Right of Entry, Union Officials' Conduct, Derivative Liability, Course of Conduct Principle, Totality Principle, Deterrence, Personal Payment Orders
Industrial Law Employment Law Pecuniary Penalties Contravention of Fair Work Act Right of Entry Union Officials' Conduct Derivative Liability Course of Conduct Principle +3 more

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Parties

Australian Building and Construction Commissioner

Applicant

Jade Ingham

First Respondent

Michael Myles

Second Respondent

Andrew Sutherland

Third Respondent

Chad Bragdon

Fourth Respondent

Kevin Griffin

Fifth Respondent

Construction, Forestry, Maritime, Mining and Energy Union

Sixth Respondent

Procedural Posture

Penalty Hearing in Civil Proceeding Under Fair Work Act 2009 (cth) / Determination of Pecuniary Penalties Following Liability Judgment

Legal Issues

  1. 1 What are the appropriate pecuniary penalties for contraventions of sections 417 and 500 of the Fair Work Act 2009 (Cth) by union officials and the union?
  2. 2 Is the involvement of senior union officials and history of contraventions an aggravating factor in penalty determination?
  3. 3 Does section 556 (course of conduct) apply to limit penalties for overlapping contraventions?

Ratio Decidendi

Appropriate pecuniary penalties must be set having regard to the seriousness of each contravention, considering the need for deterrence (both specific and general), proportionality to the conduct, the size and history of the union, and the role of individual contraveners. Where overlapping contraventions arise from the same conduct, only one penalty is imposed pursuant to section 556 of the Fair Work Act 2009 (Cth). Personal payment/non-indemnification orders were refused as they were not adequately notified to the respondents before judgment on liability, risking procedural unfairness.

Court Disposition

Pecuniary penalties imposed as detailed in orders; application for personal payment/non-indemnification orders refused; proceeding otherwise dismissed.

Orders

  • Second respondent (Michael Myles) to pay $5,100.
  • Third respondent (Andrew Sutherland) to pay $3,570.