Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2)

• Jurisdiction: Australia Federal only
• Judge: COLLIER J
• Judgment Date: 23 March 2021
• Neutral Citation: [2021] FCA 263
• Date: 23 March 2021
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2) [2021] FCA 263

File number:	QUD 388 of 2016
Judge:	COLLIER J
Date of judgment:	23 March 2021
Catchwords:	INDUSTRIAL LAW – penalty hearing – determination of pecuniary penalties to be imposed – where union officials contravened civil remedy provisions of Fair Work Act 2009 (Cth) – where union contravened civil remedy provision through union official’s conduct – quantum of penalties to be imposed – nature and extent of the contravening conduct – whether contravening conduct was serious – whether prior contraventions found subsequent to contravening conduct should be an aggravating factor or disentitle respondents to discount – whether prior contraventions of union justified penalty in the upper range – the relevance of prior contraventions proportionality of penalty to seriousness of contravening conduct – whether divergence in application of Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 – whether contraventions by the fourth respondent involved a course of conduct under s 556 Fair Work Act 2009 (Cth) – whether involvement of senior management an aggravating factor – whether lack of contrition an aggravating factor – genuine belief – “taking the odds” – deterrence as the principal object of imposing civil penalties – whether need for specific deterrence when respondents no longer engaged in union role – where pecuniary penalties imposed on both union officials and union – whether power to make personal payment order and prevent indemnity from union enlivened by application for penalty under s 546 Fair Work Act 2009 (Cth) – whether personal payment orders appropriate
Legislation:	Fair Work Act 2009 (Cth) ss 417, 500, 545(1), 545(2), 546, 550, 556, 793 Federal Court Rules 2011 rr 8.01(1), 8.03(1), 8.03(2)
Cases cited:	Australia Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 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 (The Elizabeth Street Hobart Case) [2020] FCA 1742 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458; [2017] FCAFC 53 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262; [2019] FCAFC 59 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 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 (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCCA 3261 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, Maratime, Mining and Energy Union (Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 105 Australian Building and Construction Commissioner v Menon [2020] FCA 1418 Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 Chester v The Queen (1988) 165 CLR 611; [1988] HCA 62 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 Construction Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208; [2018] FCAFC 126 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2019) 272 FCR 290; [2019] FCAFC 201 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) (2020) 274 FCR 19; [2020] FCAFC 9 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 Fair Work Ombudsman v Construction, Forestry, Mining, Maritime and Energy Union (The Hutchinson Ports Appeal) [2019] FCAFC 6 Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847 Gilshenan v The Queen [2019] NSWCCA 313 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15; [2015] FCAFC 56 NW Frozen Foods; Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007)161 FCR 513; [2007] FCAFC 146 Parker (2019) 270 FCR 39; [2019] FCAFC 56 Pattinson v Australian Building and Construction Commissioner (2020) 384 ALR 75; [2020] FCAFC 177 PIA Mortgage Services Pty Ltd v King (2020) 292 (IR) 317; [2020] FCAFC 15 Registered Organisations Commissioner v Australian Workers' Union (No 2) [2020] FCA 1148 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 Transport Workers' Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40; [2018] FCAFC 203 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529; [2003] FCAFC 193 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54
Date of hearing:	19 November 2019
Date of last submissions:	8 December 2020
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