Australian Building and Construction Commissioner v. Pattinson & Anor

Lower Court Judgment

16/10/2020 Federal Court of Australia (Allsop CJ, Besanko, White, Wigney & Bromwich JJ)

[2020] FCAFC 177

Catchwords

Industrial law – Civil penalties – Determination of appropriate penalty – Where s 349(1) of Fair Work Act 2009 (Cth) provided unlawful for person to knowingly or recklessly make false or misleading representation about another person’s obligation to engage in industrial activity – Where second respondent union had “no ticket no start” policy and respondents carried out policy by representing to two workers they could not work unless joined union – Where respondents admitted liability for two contraventions of s 349(1) – Where second respondent well-resourced and, since 2000, had breached pecuniary penalty provisions on more than 150 occasions, including at least 15 occasions involving “no ticket no start” policy and 7 previous contraventions of s 349(1) – Where primary judge considered statutory maximum penalty required to sufficiently deter respondents in light of previous contraventions and imposed maximum – Where respondents appealed to Full Federal Court, which held maximum penalty must only be imposed for most serious and grave contravening conduct and imposed lower penalty – Whether statutory maximum penalty must only be imposed for most serious and grave contravening conduct – Whether statutory maximum penalty can be imposed if necessary to deter contravening conduct.