McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29

McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29

The primary judge did not make any reviewable error in imposing penalties of $8,000 on Mr McDonald and $40,000 on the CFMEU. His reasons showed that he considered the genuine safety motivation, the opportunistic nature and the lower-end seriousness of the contraventions, applied instinctive synthesis rather than a mathematical tariff, was entitled under s 69(1) of the BCII Act to treat the CFMEU's conduct as the same as Mr McDonald's, properly considered deterrence and the total penalty, and was entitled to refuse suspension. The penalties were not unreasonable, plainly unjust, or wholly outside the available range.

Jurisdiction
Australia
Judgment Date
08 March 2011
Procedural Posture
Appeal Concerning Pecuniary Penalties for Contraventions of the Building and Construction Industry Improvement Act 2005 (cth) / Full Court Appeal From Australian Building & Construction Commissioner V Construction, Forestry, Mining and Energy Union (no 2) [2010] FCA 977
Outcome
Appeal dismissed with costs.
Legal Topics
['pecuniary Penalties' 'unlawful Industrial Action' 'contravention of S 38 of the Building and Construction Industry Improvement Act 2005 (cth)' 'appellate Review of Discretionary Penalty' 'manifest Excess' 'specific and General Deterrence' 'suspension of Penalty']
['industrial Law'] ['pecuniary Penalties' 'unlawful Industrial Action' 'contravention of S 38 of the Building and Construction Industry Improvement Act 2005 (cth)' 'appellate Review of Discretionary Penalty' 'manifest Excess' 'specific and General Deterrence' 'suspension of Penalty']

Case Brief

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Procedural Posture

Appeal Concerning Pecuniary Penalties for Contraventions of the Building and Construction Industry Improvement Act 2005 (cth) / Full Court Appeal From Australian Building & Construction Commissioner V Construction, Forestry, Mining and Energy Union (no 2) [2010] FCA 977

Legal Issues

  1. 1 ['Whether the primary judge failed to take any or any proper account of the motive for the contravening conduct and the seriousness of the contravention.' 'Whether the primary judge erred by imposing penalties calculated as a percentage of the maximum penalty.' "Whether the primary judge failed to take account of the appellants' different circumstances, relative degrees of responsibility, and deterrence considerations." 'Whether the primary judge erred in refusing to suspend the penalty imposed on Mr McDonald.' 'Whether the penalties imposed were manifestly excessive.']

Ratio Decidendi

The primary judge did not make any reviewable error in imposing penalties of $8,000 on Mr McDonald and $40,000 on the CFMEU. His reasons showed that he considered the genuine safety motivation, the opportunistic nature and the lower-end seriousness of the contraventions, applied instinctive synthesis rather than a mathematical tariff, was entitled under s 69(1) of the BCII Act to treat the CFMEU's conduct as the same as Mr McDonald's, properly considered deterrence and the total penalty, and was entitled to refuse suspension. The penalties were not unreasonable, plainly unjust, or wholly outside the available range.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellants pay the respondent's costs of the appeal, as agreed or taxed."]