Case: Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426
Outcome: applied
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 at [40] , Tracey J set out a number of "potentially relevant and applicable considerations for determining the appropriate penalty for a contravention of the BCII Act". Those considerations include: The nature and extent of the conduct which led to the breaches. The circumstances in which that relevant conduct took place. The nature and extent of any loss or damage sustained as a result of the breaches. Whether there had been similar previous conduct by the respondent. Whether the breaches were properly distinct or arose out of the one cause of conduct. The size of the business enterprise involved. Whether or not the breaches were deliberate. Whether senior management was involved in the breaches. Whether the party committing the breach had exhibited contrition. Whether the party committing the breach had taken coercive action. Whether the party committing the breach had cooperated with the enforcement authorities. The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements. The need for specific and general deterrence. (i) the nature or extent of the conduct in breach of the BCII Act The action by the Union respondents led to Monjon being excluded from the site. There is no evidence that this led to any disruption to the site. Monjon received payment for the day on 16 November 2005. It had expected to work on "18 and 19 November and for a couple of weeks following that", according to [11] of the agreed statement of facts filed in the proceeding. The conduct whilst serious and discriminatory against Monjon was transient in nature and confined to a single request on a single day. There is no evidence whether Monjon picked up other work on the days it had expected to work on the site. There is no evidence of any loss to Walton. (ii) circumstances in which the conduct took place There was no issue about widespread or significant disruption to the site. The circumstances were confined as shown in the preceding paragraph. (iii) whether or not the breaches were deliberate After the events of 16 November 2005 and those referred to in Stuart-Mahoney , the Union conducted a seminar in May 2006 to enhance the chances of compliance with the BCII Act; see Stuart-Mahoney at [53]. It is also significant that the Union respondents admit that they have contravened the relevant statutory provisions. That is an aspect of contrition. (vi) corrective action The only corrective action was the holding of the seminar. (vii) cooperation The agreed statement of facts filed more than two weeks before the penalty hearing is evidence of cooperation with the relevant authorities. (viii) minimum standards enforcement The statutory purposes of the BCII Act are referred to in Stuart-Mahoney at [56]. As Tracey J said at [57]: The imposition of pecuniary penalties for contraventions of civil penalty provisions gives effect to the statutory purposes of the BCII Act. (ix) deterrence As Tracey J said in Stuart-Mahoney at [58], "[p]enalties must be imposed at a meaningful level if they are to act as a general deterrent to others". Specific deterrence is also a factor which informs the level of penalty in this case. (x) totality principle At [60] Tracey J said: Another factor to be considered is the totality principle. The principle is designed to ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing... The orthodox position requires the determination of appropriate penalties for each contravention arising from the same course of conduct. The aggregate figure is then considered to ensure that the penalty is an appropriate response to the conduct in question... (xi) previous conduct The closest relevant previous conduct is that identified in Stuart-Mahoney . In Stuart-Mahoney , the relevant events occurred over one month before 16 November 2005. However, no penalty was imposed until 19 September 2008. The circumstances of Stuart-Mahoney were more serious than the current circumstances in that the overtime ban in that case caused a greater disruption to the site than did the exclusion of Monjon in this case. It is significant that these events also occurred before the May 2006 seminar. Tracey J imposed a fine of $35,000 on the Union for breach of s 43 of the Act and $20,000 for breach of s 38. No unlawful industrial action arose in the present case, so s 38 is not relevant. The current breaches of ss 43 and 45 are less serious than the breach of s 38 in Stuart-Mahoney . In Stuart-Mahoney the overtime ban had a much greater disruptive effect on the site. (xii) conclusion