Australian Building and Construction Commissioner v J Hutchinson Pty Ltd T/A Hutchinson Builders [2019] FCA 667

Australian Building and Construction Commissioner v J Hutchinson Pty Ltd T/A Hutchinson Builders [2019] FCA 667

The primary judge erred in principle by treating general deterrence as merely a relevant consideration and by describing the purposes of civil penalties as punishment, deterrence and rehabilitation, rather than recognising that deterrence is the principal, if not whole, purpose of the Fair Work Act civil penalty regime. That error infected the penalty assessment. On a fresh exercise of discretion, a $20,000 total penalty, comprising $2,000 for each of the 10 contraventions, appropriately reflected the need for general deterrence, the maximum aggregate penalty of $510,000, Hutchinson's status as a major building company, the involvement of senior management and the need for robust payroll...

Jurisdiction
Australia
Judgment Date
07 May 2019
Procedural Posture
Industrial Law Appeal Concerning Pecuniary Penalties for Contraventions of S 474(1)(b) of the Fair Work Act 2009 (cth) / Appeal From Orders of the Federal Circuit Court Imposing Penalty; Appeal Allowed and Penalty Discretion Re Exercised
Outcome
Appeal allowed; Federal Circuit Court penalty orders set aside; fresh pecuniary penalties imposed on the First Respondent; no order as to costs.
Legal Topics
['unprotected Industrial Action' 'failure to Deduct Pay' 'fair Work Act Pecuniary Penalties' 'general Deterrence' 'manifest Inadequacy' 'appellate Review of Discretionary Penalty']
['industrial Law' 'employment and Industrial Relations' 'civil Penalties'] ['unprotected Industrial Action' 'failure to Deduct Pay' 'fair Work Act Pecuniary Penalties' 'general Deterrence' 'manifest Inadequacy' 'appellate Review of Discretionary Penalty']

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Procedural Posture

Industrial Law Appeal Concerning Pecuniary Penalties for Contraventions of S 474(1)(b) of the Fair Work Act 2009 (cth) / Appeal From Orders of the Federal Circuit Court Imposing Penalty; Appeal Allowed and Penalty Discretion Re Exercised

Legal Issues

  1. 1 ['Whether the Federal Circuit Court erred in law by failing to treat deterrence as the principal object of the discretion to impose a civil penalty.' 'Whether the penalty imposed on Hutchinson Builders was manifestly inadequate in light of the contraventions of s 474(1)(b) of the Fair Work Act 2009 (Cth).' 'What penalty should be imposed on a fresh exercise of the discretion after the penalty was set aside.']

Ratio Decidendi

The primary judge erred in principle by treating general deterrence as merely a relevant consideration and by describing the purposes of civil penalties as punishment, deterrence and rehabilitation, rather than recognising that deterrence is the principal, if not whole, purpose of the Fair Work Act civil penalty regime. That error infected the penalty assessment. On a fresh exercise of discretion, a $20,000 total penalty, comprising $2,000 for each of the 10 contraventions, appropriately reflected the need for general deterrence, the maximum aggregate penalty of $510,000, Hutchinson's status as a major building company, the involvement of senior management and the need for robust payroll...

Court Disposition

Appeal allowed; Federal Circuit Court penalty orders set aside; fresh pecuniary penalties imposed on the First Respondent; no order as to costs.

Orders

  • ['The appeal be allowed.' 'Orders 1 and 2 of the Federal Circuit Court made on 22 February 2019 in Director, Fair Work Building Industry Inspectorate v J Hutchinson Pty Ltd t/a Hutchinson Builders & Ors [2019] FCCA 402 be set aside.' 'Pursuant to section 545 of the Fair Work Act 2009 (Cth), the First Respondent pay...