Australian Building and Construction Commissioner v Holl (The Wheeler Cranes Case)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 30 November 2021
• Neutral Citation: [2021] FCA 1480
• Date: 30 November 2021

Federal Court of Australia

Australian Building and Construction Commissioner v Holl (The Wheeler Cranes Case) [2021] FCA 1480

File number:	NSD 2137 of 2019
Judgment of:	ABRAHAM J
Date of judgment:	30 November 2021
Catchwords:	INDUSTRIAL LAW – assessment of penalty – where contraventions of ss 355(b) and 500 of the Fair Work Act 2009 (Cth) and s 52(b) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) admitted by respondents – principles relating to imposition of pecuniary penalties – whether a single ‘course of conduct’ can be established – declarations made – penalties imposed
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 6, 52, 81, 84, 92, 94, 95 Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth) ss 12, 66, 355, 353, 363, 500, 510, 513, 545, 546, 550, 793 Fair Work (Registered Organisations) Act 2009 (Cth) s 26 Work Health and Safety Act 2011 (NSW) ss 117, 119 Work Health and Safety Regulation 2017 (NSW) cl 28
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (The Botany Cranes Case) [2021] FCA 363; (2021) 304 IR 428 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070; (2020) 299 IR 231 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59; (2019) 269 FCR 262 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 10 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Queensland Infrastructure Case) [2017] FCAFC 113; (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238; (1997) 145 ALR 36 Australian Competition and Consumer Commission v Cement Pty Ltd [2017] FCAFC 159; (2017) 258 FCR 312 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330; (2015) 327 ALR 540 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd (No 2) [2017] FCA 1237 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 4) [2012] FCA 894; (2012) 225 IR 113 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Flinders University Case) [2016] FCA 413 Environment Protection Authority v Barnes [2006] NSWCCA 246 Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; (2019) 270 FCR 39 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580 Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; (2008) 177 IR 306 TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; (2012) 210 FCR 277 Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) ATPR 41-076
Division:	General Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	204
Date of hearing:	28 October 2021
Counsel for the Applicant:	Mr Y Shariff SC with Mr M Seck
Solicitor for the Applicant:	MinterEllison
Counsel for the First, Second and Third Respondents:	Mr I Latham
Solicitor for the First, Second, Third and Fourth Respondents:	Taylor & Scott Lawyers
Counsel for the Fourth Respondent:	Mr S Crawshaw SC

ORDERS

		NSD 2137 of 2019
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	BRENDAN HOLL First Respondent ; JUSTIN HOBSON Second Respondent ; MIKEL DACKO (and another named in the Schedule) Third Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	30 November 2021

THE COURT DECLARES THAT:

First respondent

1. Pursuant to s 545 of the Fair Work Act 2009 (Cth) (FW Act), the first respondent contravened s 355(b) of the FW Act on 18 October 2018 at the Kooragang Coal Terminal, Kooragang Island, New South Wales (the KCT) by taking action against Port Waratah Coal Services (PWCS) with an intent to coerce PWCS to not engage Wheeler Cranes & Services Pty Ltd (Wheeler Cranes) as an independent contractor.

2. Pursuant to s 81 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act), the first respondent contravened s 52(b) of the BCIIP Act on 19 October 2018 at the Newcastle TAFE Site at 590 Hunter Street, Newcastle, New South Wales (the Newcastle TAFE Site) by taking action against 3 Cross Pty Ltd (3 Cross) with an intent to coerce 3 Cross to not engage Wheeler Cranes as a building contractor.

3. ...