Case: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 ; (1999) 94 IR 231
Outcome: referred to
are various considerations that may be relevant in determining an appropriate penalty for a contravention of the Building and Construction Industry Improvement Act . They include: (a) the circumstances in which the relevant conduct took place; (b) the nature and extent of the conduct which led to the breaches, including whether the conduct was undertaken in deliberate disregard of the applicable law; (c) the consequences of the contravening conduct, including the nature and extent of any loss or damage sustained as a result; (d) where more than one contravention of the Act is involved, whether the contraventions are properly seen as distinct or whether they arise out of the one course of conduct; (e) whether the respondent has previously been found to have engaged in similar unlawful conduct; and (f) the need for specific and general deterrence. See Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 ; (2008) 177 IR 61 , at 69 [40] per Tracey J and Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 ; (1999) 94 IR 231 at [7] - [8] per Branson J, both of which have been cited with approval. These factors are relevant in this case. Similar unlawful conduct in the past is relevant and may justify a heavier penalty than might otherwise be imposed, although not a penalty that is disproportionate to the contravention in question: see Coal and Allied Operations Pty Ltd (No 2) 94 IR at 232 [7]-[8] per Branson J. As Tracey J observed in Stuart-Mahoney 177 IR at 70 [44], "[s]imilar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions". Also, as his Honour went on to say: Conduct which is of a different character does not assist this assessment: see Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 389 [67] . Similar conduct which has been found to contravene other legislative provisions will have potential relevance. In support of this proposition, the respondents relied on Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 390 and Temple v Powell 173 IR 189 at 209 [63]. In Leighton Contractors , the Supreme Court of Western Australia was called to fix a penalty for contravention of s 38 of the Building and Construction Industry Improvement Act . In connection with the Union's prior contraventions, after citing with approval the comments of Branson J in Coal and Allied Operations Pty Ltd (No 2) 94 IR 231 (see [9] above), Le Miere J said (at 390 [67]) that: One matter her Honour considered was whether the respondent had previously been found to have engaged in conduct in contravention of Pt XA of that Act. In my view, that is the correct approach. It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the first defendant anywhere in Australia. The first defendant is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of the conduct of the first defendant through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in questions and are contraventions of different legislation.