Australian Building and Construction Commissioner v Pattinson

• Jurisdiction: Australia Federal only
• Judge: SNADEN J
• Judgment Date: 14 October 2019
• Neutral Citation: [2019] FCA 1654
• Court: Federal Court
• Date: 14 October 2019

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654

File number:	VID 229 of 2019
Judge:	SNADEN J
Date of judgment:	14 October 2019
Catchwords:	INDUSTRIAL LAW – pecuniary penalties – agreed contraventions – false or misleading statement about an obligation to engage in “industrial activity” – application of “no ticket, no start” philosophy – contravener knew statement was misleading, or was reckless as to that fact – analysis of the nature, gravity, character and seriousness of the contraventions – whether history of contravening conduct should inform the court’s assessment of how objectively serious the agreed contraventions were – application of “course of conduct” and “totality” principles – appropriateness of declaratory relief
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 5, 15 Conciliation and Arbitration Act 1904 (Cth) ss 5, 9 Crimes Act 1914 (Cth) s 4AA Fair Work Act 2009 (Cth) Pt 3-1, ss 12, 336, 340, 343, 346, 347, 348, 349, 363, 500, 539, 546, 570 Fair Work (Registered Organisations) Act 2009 (Cth) Industrial Relations Act 1988 (Cth) s 170DF Universal Declaration of Human Rights Art 20 Workplace Relations Act 1996 (Cth) Pt XA, ss 298A, 298K, 298L, 298M, 298P, 298Q, 298Y, 790, 792
Cases cited:	A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Athens v Randwick City Council (2005) 64 NSWLR 58 Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 Australian Building and Construction Commissioner v Barker [2017] FCCA 1143 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan Street Case”) [2018] FCA 957 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Aldi and Altona North Case) (No 2) [2019] FCA 1667 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1968 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 286 IR 336 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 468 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) (2018) 358 ALR 725 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 Australian Building and Construction Commissioner v D’Arcy & Construction, Forestry, Mining and Energy Union [2019] FCCA 563 Australian Building and Construction Commissioner v Hassett [2019] FCA 855 Australian Building and Construction Commissioner v Moses & Ors [2017] FCCA 2738 Australian Building and Construction Commissioner v Powell [2019] FCA 972 Australian Building and Construction Commissioner v Yazaki Corporation (2018) 262 FCR 243 Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 1441 Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1 Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560 Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2016] FCA 1129 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2018] HCASL 380 Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commissioner [2017] HCATrans 190 Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385 Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99 Markarian v The Queen (2005) 228 CLR 357 NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285 Ogawa v Attorney-General (No 2) [2019] FCA 1003 Parker v Australian Building and Construction Commissioner (2019) 365 ALR 402 Radisich v McDonald and Construction, Forestry, Mining and Energy Union [2012] FMCA 919 Radisich v Molina & Ors (No 2) [2011] FMCA 66 Royer v Western Australia (2009) 197 A Crim R 319 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 Smith v Comcare (2014) 64 AAR 205 Stuart-Mahoney v Construction, Forestry, Mining and Energy Union & Anor (No 2) [2008] FMCA 1015 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 Trade Practices Commission v CSR Ltd (1991)...