Australian Building and Construction Commissioner v Hassett

• Jurisdiction: Australia Federal only
• Judge: O'CALLAGHAN J
• Judgment Date: 06 June 2019
• Neutral Citation: [2019] FCA 855
• Date: 06 June 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Hassett [2019] FCA 855

File number:	TAD 21 of 2018
Judge:	O'CALLAGHAN J
Date of judgment:	6 June 2019
Catchwords:	INDUSTRIAL LAW – contraventions of ss 499 and 500 of the Fair Work Act 2009 (Cth) – making of orders as to penalty
Legislation:	Fair Work Act 2009 (Cth) ss 499, 500, 556, 557
Cases cited:	Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2019) 363 ALR 246 Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 468 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 (No 2) [2018] FCA 1968 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Brooker Highway Case) [2018] FCA 1081 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) [2018] FCA 163; (2018) 358 ALR 725 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Webb Dock Case) [2017] FCA 62 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 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] FCAFC 97; (2018) 280 IR 28 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120; (2009) 189 IR 145 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203
Date of hearing:	2 May 2019
Registry:	Tasmania
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	62
Counsel for the Applicant:	M Felman
Solicitor for the Applicant:	B Vallence of the Australian Building and Construction Commissioner
Counsel for the Respondents:	P Boncardo
Solicitor for the Respondents:	K Reid of the Construction, Forestry, Maritime, Mining and Energy Union

ORDERS

		TAD 21 of 2018
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	RICHARD HASSETT First Respondent ; KEVIN HARKINS Second Respondent ; CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Third Respondent

JUDGE:	O'CALLAGHAN J
DATE OF ORDER:	6 june 2019

THE COURT DECLARES THAT:

1. The First Respondent contravened section 499 of the Fair Work Act 2009 (Cth) (the FW Act) on 5 June 2017 at the Living City Civic Hub Project at 17 Fenton Way, Devonport (the Site) by failing to comply with a reasonable request by Fairbrother Pty Limited (Fairbrother), the Site occupier, to comply with an occupational health and safety requirement that applied to the Site.

2. The First Respondent contravened section 500 of the FW Act on 5 June 2017 at the Site by acting in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act, by a) climbing on the crane while it was in operation; b) ignoring Fairbrother’s reasonable requests to get off the crane; and c) using insulting language and engaging in abusive behaviour.

3. The First Respondent contravened section 500 of the FW Act on 6 June 2017 at the Site by acting in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act, by climbing on the crane while it was in operation causing crane work to stop.

4. By reason of sections 793 and 550 of the FW Act, the Third Respondent contravened section 499 of the FW Act by the conduct of the First Respondent constituting the contravention the subject of the first declaration.

5. By reason of sections 793 and 550 of the FW Act, the Third Respondent contravened section 500 of the FW Act by the conduct of the First Respondent constituting the contravention the subject of the second declaration.

6. By reason of sections 793 and 550 of the FW Act, the Third Respondent contravened section 500 of the FW Act by the conduct of the First Respondent constituting the contravention the subject of the third declaration.

THE COURT ORDERS THAT:

7. The First Respondent pay to the Commonwealth of Australia a penalty of $8,000 in respect of his contravention of section 499 on 5 June 2017.

8. The First Respondent pay to the Commonwealth of Australia a penalty of $8,000 in respect of his contravention of section 500 on 5 June 2017.

9. The First Respondent pay to the Commonwealth of Australia a penalty of $6,000 in respect of his contravention of section 500 on 6 June 2017.

10. The Third Respondent pay to the Commonwealth of Australia a penalty of $40,000 in respect of its contravention of section 499 on 5 June 2017.

11. The Third Respondent pay to the Commonwealth of Australia a penalty of $40,000 in respect of its contravention of section 500 on 5 June 2017.

12. The Third Respondent pay to the Commonwealth of Australia a penalty of $35,000 in respect of its contravention of section 500 on 6 June 2017.

13. The pecuniary penalties referred to in orders 7 to 12 above be paid to the Commonwealth of Australia within 28 days of these orders being made by the Court.

14. There be no order as to costs.

15. The proceeding otherwise be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011...