Australian Building and Construction  
Commissioner v Construction, Forestry,  
Maritime, Mining and Energy Union (The 250 East  
Terrace Case) [2022] FCA 760 (1 July 2022)  
Last Updated: 4 July 2022  
FEDERAL COURT OF AUSTRALIA  
Australian Building and Construction Commissioner v Construction, Forestry,  
Maritime, Mining and Energy Union (The 250 East Terrace Case) [2022] FCA 760  
File  
number(s):  
SAD 136 of 2020  
Judgment of:  
O'SULLIVAN J  
1 July 2022  
Date of  
judgment:  
Catchwords:  
INDUSTRIAL LAW – determination of appropriate pecuniary  
penalties pursuant to s 546 of the Fair Work Act 2009 (Cth) for  
contraventions of s 47(1) of the Building and Construction Industry  
(Improving Productivity) Act 2016 (Cth) (BCIIP Act) – where a  
commercial dispute arose between the head contractor on a project at  
250 East Terrace, Adelaide SA (Site) and Core-Form Pty Ltd (a sub-  
contractor employed at the Site) – where an officer of the Union  
organised an unlawful picket – where an employee and Director of Core-  
Form Pty Ltd engaged in the unlawful picket – where the unlawful picket  
restricted a painter from accessing the Site in his vehicle – where ss 94  
and 95 of the BCIIP Act provides that a body corporate is taken to have  
engaged in the same conduct as an officer, employee or agent of the body  
within the scope of his or her actual or apparent authority – where the  
Union, an officer of the Union, Core-Form Pty Ltd, and an  
employee/director of Core-Fore Pty Ltd contravened s 47(1) – where  
contraventions are objectively serious – where the Union officer has a  
history of contravening industrial legislation – where the Union has a  
history of contravening industrial legislation – the relevance of the  
Building and Construction Industry Security of Payment Act (SA) 2009,  
in determining an appropriate penalty – declarations made and  
pecuniary penalties imposed.  
Legislation:  
Building and Construction Industry (Improving Productivity) Act 2016  
(Cth), ss 3, 3(1), 5, 47, 47(1), 47(2)(b)(i), (ii), 81, 81(6), 81(6)(c), 94,  
94(1)(a), 94(2), 95, 95(1)(b), 95(3)  
Crimes Amendment (Penalty Unit) Act 2017 (Cth), Schedule 1  
Fair Work (Registered Organisations) Act 2016 (Cth), ss 26, 27  
Fair Work Act 2009 (Cth), ss 546, 546(1)  
Federal Court of Australia Act 1976 (Cth), s 21  
Trade Practices Act 1974 (Cth)  
Building and Construction Industry Security of Payment Act (SA) 2009,  
s 3  
Cases cited:  
Amflo Constructions Pty Limited v Anthony Jeffries [2003] NSWSC 856  
Australian Building and Construction Commissioner v Construction,  
Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR  
68  
Australian Building and Construction Commissioner v Construction,  
Forestry, Maritime, Mining and Energy Union (the WGC Cranes Case)  
[2021] FCA 622  
Australian Building and Construction Commissioner v Pattinson [2022]  
HCA 13  
Australian Competition and Consumer Commission v The Construction,  
Forestry, Mining and Energy Union [2006] FCA 1730  
Australian Competition and Consumer Commission v Reckitt Benckiser  
(Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25  
Australian Competition and Consumer Commission v TPG Internet Pty  
Ltd [2013] HCA 54; (2013) 250 CLR 640  
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008]  
FCAFC 8; (2008) 165 FCR 560  
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA  
190; (2010) 78 NSWLR 393  
Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373  
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  
Director of the Fair Work Building Industry Inspectorate v Stephenson  
[2014] FCA 1432  
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164  
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72  
Pattinson v Australian Building and Construction Commissioner [2020]  
FCAFC 177; (2020) 282 FCR 580  
Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248  
Romaldi Constructions Pty Ltd v Adelaide Interior Linings Pty Ltd (No  
2) [2013] SASCFC 124  
Singtel Optus Pty Ltd v Australian Competition and Consumer  
Commission [2012] FCAFC 20; (2012) 287 ALR 249  
The Commonwealth v Director, Fair Work Building Industry  
Inspectorate (“The Agreed Penalties Case”) [2015] HCA 46; (2015) 258  
CLR 482  
The Trustee for Allway Unit Trust (t/as Westside Mechanical  
Contracting Pty Ltd) v R & D Air-conditioning Pty Ltd and Ors [2018]  
SASC 46  
Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR  
41-076  
Division:  
Registry:  
Fair Work Division  
South Australia  
National  
Employment and Industrial Relations  
Practice Area:  
Number of  
161  
paragraphs:  
Date of last  
submission/s:  
6 May 2022 (written submissions)  
16 March 2022  
Date of  
hearing:  
Counsel for the Mr J Bourke QC with Ms N Campbell  
Applicant:  
Solicitor for  
Minter Ellison  
the Applicant:  
Counsel for the Mr M Abbott QC with Mr C Jacobi  
First and  
Second  
Respondents:  
Solicitor for  
the First and  
Second  
Construction, Forestry, Maritime, Mining and Energy Union  
Respondents:  
Counsel for the Mr T Guthrie  
Sixth and  
Eighth  
Respondents:  
Solicitor for  
the Sixth and  
Eighth  
NDA Law  
Respondents:  
ORDERS  
SAD 136 of 2020  
BETWEEN:  
AND:  
AUSTRALIAN BUILDING AND CONSTRUCTION  
COMMISSIONER  
Applicant  
CONSTRUCTION, FORESTRY, MARITIME, MINING AND  
ENERGY UNION  
First Respondent  
ANDREW SUTHERLAND  
Second Respondent  
ANDREW JAMES SNEATH (and another named in the Schedule)  
Sixth Respondent  
ORDER MADE BY: O'SULLIVAN J  
DATE OF ORDER: 1 JULY 2022  
TO: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION,  
ANDREW SUTHERLAND, ANDREW JAMES SNEATH AND CORE-FORM PTY  
LTD  
IF YOU (BEING THE PERSONS BOUND BY THIS ORDER):  
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN  
THIS ORDER FOR THE DOING OF THE ACT; OR  
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES  
YOU NOT TO DO,  
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY  
OR OTHER PUNISHMENT.  
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING  
WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER  
MAY BE SIMILARLY PUNISHED.  
THE COURT DECLARES THAT:  
1. On 16 October 2019, Andrew Sutherland committed one contravention of s 47(1) of the  
Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP  
Act) by organising an unlawful picket at 250 East Terrace, Adelaide, South Australia.  
2. By reason of ss 94 and 95 of the BCIIP Act, Andrew Sutherland’s conduct in organising  
an unlawful picket is taken to have been engaged in by the Construction, Forestry,  
Maritime, Mining and Energy Union (Union) so that the Union committed one  
contravention of s 47(1) of the BCIIP Act by organising an unlawful picket at 250 East  
Terrace, Adelaide, South Australia.  
3. On 16 October 2019, Andrew James Sneath committed one contravention of s 47(1) of  
the BCIIP Act by engaging in an unlawful picket at 250 East Terrace, Adelaide, South  
Australia.  
4. By reason of s 94 of the BCIIP Act, Andrew James Sneath’s conduct in engaging in an  
unlawful picket is taken to have been engaged in by Core-Form Pty Ltd (Core-Form) so  
that Core-Form committed one contravention of s 47(1) of the BCIIP Act by engaging an  
unlawful picket at 250 East Terrace, Adelaide, South Australia.  
THE COURT ORDERS THAT:  
5. The Construction, Forestry, Maritime, Mining and Energy Union pay a penalty of  
$189,000 in respect of its contravention of s 47(1) of the BCIIP Act on 16 October 2019.  
6. Andrew Sutherland pay a penalty of $38,000 in respect of his contravention of s 47(1) of  
the BCIIP Act on 16 October 2019.  
7. Andrew James Sneath pay a penalty of $25,000 in respect of his contravention of s 47(1)  
of the BCIIP Act on 16 October 2019.  
8. Core-Form pay a penalty of $132,000 in respect of its contravention of s 47(1) of the  
BCIIP Act on 16 October 2019.  
9. Each of the pecuniary penalties payable by the Union and Andrew Sutherland be paid to  
the Commonwealth of Australia within 28 days.  
10. Each of the pecuniary penalties payable by Andrew James Sneath and Core-Form be  
paid to the Commonwealth of Australia within 90 days.  
11. The Union pay the applicant’s costs of and incidental to these proceedings fixed in the  
sum of $7,500.  
REASONS FOR JUDGMENT  
O’SULLIVAN J:  
INTRODUCTION  
1. On 12 October 2021, the Australian Building and Construction Commissioner  
(Commissioner) filed an amended originating application in which it seeks  
declarations and the imposition of pecuniary penalties against the first respondent - the  
Construction, Forestry, Maritime, Mining and Energy Union (Union); the second  
respondent – Mr Andrew Sutherland (Mr Sutherland); the sixth respondent – Mr  
Andrew James Sneath (Mr Sneath); and the eighth respondent - Core-Form Pty Ltd  
(Core-Form), (together the respondents).  
2. On 12 October 2021, the Court was informed that the parties had reached agreement as  
to liability and wished to proceed to a penalty hearing. As a consequence of that  
agreement, the Commissioner was granted leave to file and serve an amended  
originating application and a further amended statement of claim. Leave was also  
granted to discontinue the proceedings against a number of the other respondents with  
the remaining respondents being granted leave to file and serve amended defences  
admitting all paragraphs of the further amended statement of claim that were applicable  
to them.  
3. The remaining respondents to which I refer above are the respondents.  
Factual findings  
4. A further amended statement of claim was filed on 12 October 2021. The allegations are  
admitted by the respondents in the amended defences, save for those pleas where a  
particular respondent does not plead to an allegation on the basis the pleading in  
question pleads a question of law, or alternatively, the pleading is not directed to that  
particular respondent.  
5. I make the following factual findings based on the allegations admitted by the  
respondents and paragraphs 5, 10, 11 and annexures JS-3 and JS-4 to the affidavit of  
Joseph Anthony Sommariva (Mr Sommariva), affirmed on 29 September 2020 and  
filed on 23 March 2022 (Sommariva affidavit).  
The respondents  
6. The Union is and was at all relevant times an organisation of employees registered under  
s 26 of the Fair Work (Registered Organisations) Act 2016 (Cth) and by operation of s  
27 of that Act, a body corporate such that it was capable of being sued in its registered  
name. It is and was an “industrial association” allowing membership by “building  
employees”, a “building association”, a “building industry participant”, and a  
“constitutionally-covered entity” all within the meaning of s 5 of the Building and  
Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act).  
7. In relation to the matters the subject of these proceedings, Mr Sutherland was acting in  
his capacity and within the scope of his authority, as the Acting State Secretary of the  
South Australian Divisional Branch of the Construction and General Division of the  
Union. He was an “officer” of the Union within the meaning of ss 5 and 95 of the BCIIP  
Act, an “official” of the Union for the purposes of s 94 of the BCIIP Act, and a “building  
industry participant” within the meaning of s 5 of the BCIIP Act.  
8. Mr Sneath was at all relevant times a Director of Core-Form. He was also employed as a  
Manager of Core-Form. He was a “building industry participant”, and employed to  
perform “building work” both within the meaning of s 5 of the BCIIP Act. He was an  
“official” of Core-Form for the purposes of s 94 of the BCIIP Act. In relation to the  
matters the subject of these proceedings, Mr Sneath was acting in his capacity, and  
within the scope of his authority, as an employee of Core-Form.  
9. Core-Form was at all relevant times a body corporate, in the business of performing  
formwork construction works (amongst other things). It was engaged to perform  
concreting works at 250 East Terrace, Adelaide (Site) and was both a “building industry  
participant” and a “constitutionally-covered entity” within the meaning of s 5 of the  
BCIIP Act.  
The head contractor, the developers, and the subcontractor  
10. Mr Sommariva was the head contractor for a construction project (Project) involving  
the construction of 14 apartments to the value of $27 million at the Site. Mr Sommariva  
was the occupier of the Site and a “building industry participant” within the meaning of s  
5 of the BCIIP Act.  
11. The developers of the Project were Pajo Projects Pty Ltd (Pajo) and 250 East Pty Ltd,  
each of which is a “constitutionally-covered entity” and a “building industry participant”  
within the meaning of s 5 of the BCIIP Act.  
12. Scope Painting Pty Ltd (Scope) was contracted by Mr Sommariva to perform painting  
services at the Site. It was a “building industry participant” and a “constitutionally-  
covered entity” both within the meaning of s 5 of the BCIIP Act.  
Background and the contravening conduct  
13. On 22 November 2017, Mr Sommariva entered into a contract with Core-Form to supply  
and construct formwork at the Site.  
14. In or about August 2018, a dispute arose between Core-Form and Mr Sommariva in  
which Core-Form alleged it was due approximately $180,000 for work done on the Site.  
Mr Sommariva alleged the works were incomplete and therefore payment was not due.  
As a result of not being paid, Core-Form had been forced to lay off workers.  
15. In August 2018, Core-Form’s workers stopped attending the Site. On 20 September  
2018, Mr Sommariva gave written notice to Core-Form terminating its contract with  
Core-Form.  
16. Under a covering letter dated 30 April 2019, Mr Rudi Totzenberger, a Director of Core-  
Form, sent Mr Sommariva an invoice which was a summary of outstanding invoices for  
work done on the Site by Core-Form for Mr Sommariva (Core-Form claim).  
17. The covering letter contained a statement that the invoice accompanying the letter was  
“... a Payment Claim made under the Building and Construction Industry Security of  
Payment Act 2009 (SA)”.  
18. By letter dated 9 May 2019, Mr Sommariva rejected the Core-Form claim and denied it  
was a proper payment claim within the meaning of the Building and Construction  
Industry Security of Payment Act 2009 (SA) (SOP Act).  
19. On 1 October 2019, Mr Sneath and a Union official (not Mr Sutherland) attended at the  
front entrance to the Site (the 1 October 2019 meeting) during which a conversation  
in the following terms occurred:  
Mr Sneath said words to the effect of, “where is my tools and  
container?”  
The Union official said words to the effect of, “where is Andrew’s [Mr  
Sneath’s] tools and the container, and you owe him money.”  
Mr Sommariva said words to the effect, “this has got nothing to do with  
you ... it’s none of your business.”  
Mr Sneath said words to the effect of, “you owe us money.”  
20. On 16 October 2019, at approximately 9.50am, some 20 to 30 people (protesters)  
gathered at the entrance to the Site on East Terrace, in front of the entry gates  
(Protest). The protesters included:  
(a) Mr Sutherland, who was wearing Union branded clothing and was in  
possession of a red Union flag;  
(b) Other persons wearing Union branded clothing, some of whom were holding  
Union flags with others holding signs with the words “PAY UR BILLS”;  
(c) Mr Sneath, who held the sign “JOB DONE WHERE’S THE MONEY”; and  
(d) Four persons who were employees of Core-Form.  
21. During the Protest:  
(a) Some of the protesters held signs with the following phrases:  
“PAY UR BILLS”;  
“MR SOMMARIVA RIPS OFF WORKERS”;  
“STOP RIPPING OFF SUBBIES”; and  
“JOB DONE WHERE'S THE MONEY”.  
(b) Some of the protesters used a megaphone to lead other protesters in various  
chants including:  
“Pay your bills. Pay your bills! Pay your bills! Pay your bills,  
Joe!”;  
“Sell your Porsche”; “Sell the car”;  
“What do we want? Bills paid! When do we want it? Now!”  
(c) Some of the protesters also shouted “grub” and “grubby-grub-grub.”  
22. Ms Talia Sommariva was employed by Mr Sommariva as a Trades Assistant to work at  
the Site. Some of the protesters said to her, “where’s your boots?”; “where’s your hard  
hat?”, “get off site”; and “where are your safety boots”; over about a five second period as  
well as chanting “pay your bills”; “joe’s a grub, grubby, grub, grub” over about a 15  
second period.  
23. Ms Lori Kambitsis was a legal practitioner whose firm was engaged to act on behalf of  
Mr Sommariva. Some of the protesters chanted in respect of her “sell the Porsche” and  
“pay your bills”.  
24. Some of the protesters were directing the chants set out in paragraph 22 above at Mr  
Sommariva.  
25. Mr Travis Adams (Mr Adams) was a painter with Scope. During the Protest, some of  
the protesters prevented a vehicle driven by Mr Adams from entering the Site by  
obstructing access to it. Mr Adams parked his vehicle and walked to the Site. As a  
consequence, he was prevented for approximately 19 minutes from using his vehicle to  
bring painting supplies onto the Site for the purpose of Scope performing its contract  
with Mr Sommariva.  
26. The Protest disbanded at approximately 10.52am.  
27. By reason of Mr Adams being prevented from driving his vehicle onto the Site, for a  
period of 19 minutes, the Protest was an unlawful picket insofar as it was action that:  
(1) Directly restricted Mr Adams from accessing the Site, in the sense that he was  
unable to park his vehicle on the Site;  
(2) Was motivated for the purpose of:  
(a) Supporting or advocating claims against Mr Sommariva by Core-  
Form in relation to the employment of employees or the engagement of  
it as a contractor in that:  
(i) The claims by the respondents were that if Mr  
Sommariva paid money allegedly owed to Core-Form it  
would allow Core-Form to pay its employees, stop it from  
laying off its employees, and cause it to re-employ its former  
employees; and  
(ii) Core-Form should be paid the money it was allegedly  
owed for work it had done for Mr Sommariva on the Site: (s  
47(2)(b)(i) of the BCIIP Act); and  
(b) Advancing the industrial objectives of the Union which were:  
(i) To ensure that money be paid by Mr Sommariva to Core-  
Form so it could retain its employees, not have to lay off  
more of its employees, and re-employ former employees  
that had been laid off;  
(ii) To ensure greater employment security for the  
employees of Core-Form; and  
(iii) By reason of the matters at (b)(i) and (b)(ii) above,  
assisting members or persons eligible to be members of the  
Union: (s 47(2)(b)(ii) of the BCIIP Act).  
28. In these reasons, I refer to the approximately 19 minute unlawful picket as the  
“contravening conduct”.  
Admitted contraventions  
29. Mr Sutherland admits that on or about 16 October 2019 he organised the unlawful picket  
and in so doing contravened s 47(1) of the BCIIP Act.  
30. The Union admits that Mr Sutherland’s contravention of s 47(1) is taken to be a  
contravention by it by reason of ss 94(1)(a) and (2) and/or 95(1)(b) and (3) of the BCIIP  
Act. By Mr Sutherland organising the unlawful picket, the actions of Mr Sutherland are  
taken to be the actions of the Union, so that the Union has committed one contravention  
of s 47(1) of the BCIIP Act.  
31. Mr Sneath admits that on or about 16 October 2019 he engaged in the unlawful picket  
and in so doing contravened s 47(1) of the BCIIP Act.  
32. Core-Form admits that Mr Sneath’s contravention of s 47(1) is taken to be a  
contravention by it by reason of ss 94(1)(a) and (2) of the BCIIP Act. By Mr Sneath  
engaging in the unlawful picket, the actions of Mr Sneath are taken to be the actions of  
Core-Form, so that Core-Form has committed one contravention of s 47(1) of the BCIIP  
Act by engaging in the unlawful picket.  
Principles  
33. Section 546 of the Fair Work Act 2009 (Cth) (FWA) provides that amongst other  
courts, this Court may order a person to pay a pecuniary penalty “that the court  
considers is appropriate if the court is satisfied that the person has contravened a civil  
remedy provision.”  
34. In Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076,  
52,152-52,153 French J (as his Honour then was) identified factors which were relevant  
to an assessment of a penalty of appropriate deterrent value under the Trade Practices  
Act 1974 (Cth). His Honour identified those factors as:  
1. The nature and extent of the contravening conduct.  
2. The amount of loss or damage caused.  
3. The circumstances in which the conduct took place.  
4. The size of the contravening company.  
5. The degree of power it has, as evidenced by its market share and ease of entry into  
the market.  
6. The deliberateness of the contravention and the period over which it extended.  
7. Whether the contravention arose out of the conduct of senior management or at a  
lower level.  
8. Whether the company has a corporate culture conducive to compliance with the  
Act, as evidenced by educational programs and disciplinary or other corrective  
measures in response to an acknowledged contravention.  
9. Whether the company has shown a disposition to co-operate with the authorities  
responsible for the enforcement of the Act in relation to the contravention.  
35. In Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (13  
April 2022) (ABCC v Pattinson) the High Court considered the approach to the  
imposition of pecuniary penalties under s 546 of the FWA, and as part of that  
consideration, the circumstances in which a court might impose the maximum  
pecuniary penalty.  
36. The following principles may be extracted from the judgment of the plurality (Kiefel CJ,  
Gageler, Keane, Gordon, Steward and Gleeson JJ):  
(1) Under the civil penalty regime provided by the FWA, the primary, if not sole  
purpose of a civil penalty is “... the promotion of the public interest in compliance  
with the provisions of the Act by the deterrence of further contraventions of the  
Act: at [9].  
(2) Nothing in the text, context or purpose of s 546 of the FWA requires that the  
maximum penalty be reserved for only the most serious examples of the offending  
in question: at [10].  
(3) “The theory of s 546 of the FWA is that the financial disincentive involved in  
the imposition of a pecuniary penalty will encourage compliance with the law by  
ensuring that contraventions are viewed by the contravenor and others as an  
economically irrational choice.” “The Court’s function is to give effect to the  
intention of the FWA. In this regard, the Court must do what it can to deter non-  
compliance with the FWA”: at [66].  
(4) “Where it is evident that a contravention has occurred as a matter of industrial  
strategy pursued without regard for the law, it is open to a court acting under s 546  
reasonably to conclude that no penalty short of the maximum would be  
appropriate.”: at [67].  
(5) What is required is that there be some “reasonable relationship between the  
theoretical maximum and the final penalty imposed” (referring with approval to  
Australian Competition and Consumer Commission v Reckitt Benckiser  
(Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25, 63 at [156]): at [10];  
(6) Although courts may adapt principles which govern criminal sentencing to civil  
penalty regimes, nonetheless there are limits to the transplantation of principles  
from criminal prosecutions to civil penalty proceedings. Unlike criminal sentences,  
civil penalties are imposed primarily, if not solely, for the purpose of deterrence  
and that “[r]etribution, denunciation and rehabilitation have no part to play”  
(referring with approval to 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,  
167 at [19]); Trade Practices Commission v CSR Ltd [1991] ATPR 41-076; and  
citing The Commonwealth v Director, Fair Work Building Industry Inspectorate  
(“The Agreed Penalties Case”) [2015] HCA 46; (2015) 258 CLR 482, 495 at [24]: at  
[14]-[16].  
(7) Nothing in the text, context or purpose of s 546 requires that when fixing an  
“appropriate” penalty the “notion of proportionality” has a role to play. Rather, the  
discretion to be exercised under s 546 is to be exercised judicially, that is to say  
fairly and reasonably having regard to the subject matter, scope and purpose of the  
legislation (Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72  
at [22], Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373, 403 at [40];  
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, 172-173 at  
[24]). To the extent s 546 requires a “proportionate” penalty to be imposed, that  
refers “to a penalty that strikes a reasonable balance between deterrence and  
oppressive severity”. This recognises that “... proportionality of penalty is  
measured in the wider context of the demands of effective deterrence and  
encouraging the corresponding virtue of voluntary compliance.” (referring with  
approval to Australian Competition and Consumer Commission v Reckitt  
Benckiser (Australia) Pty Ltd at [152]): at [40], [41].  
(8) Although in CSR Ltd French J (as his Honour then was) identified a number of  
factors to which regard may be had in assessing a penalty of appropriate deterrent  
value, (CSR Ltd at 52,152-52,153) the list of relevant considerations is not a “rigid  
catalogue of matters for attention” as if it were a legal checklist (referring with  
approval to Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008]  
FCAFC 8; (2008) 165 FCR 560, 580 at [91]). The ultimate task of the Court is to  
determine an “appropriate” penalty in the circumstances of the particular case: at  
[18], [19].  
(9) An “appropriate” penalty strikes a reasonable balance between oppressive  
severity and the need for deterrence in respect of the particular case. A court “...  
empowered by s 546 to impose an “appropriate” penalty must act fairly and  
reasonably for the purpose of protecting the public interest by deterring future  
contraventions of the Act”: at [47], [48].  
(10) In determining whether the maximum level of deterrence is called for, both  
the circumstances of the contravenor and the circumstances of the contravention  
may be relevant, however they are not exclusive considerations: at [58]-[59]:  
58. ... Once it is accepted, as it must be, that the maximum penalty is intended by  
the Act to be imposed in respect of a contravention warranting the strongest  
deterrence within the prescribed cap, there is no warrant for the court to  
ascertain the extent of the necessity for deterrence by reference exclusively to  
the circumstances of the contravention. The categories of circumstances may  
overlap, in that matters may bear upon both the seriousness of the  
contravention and the intransigence of the contravenor. Further,  
circumstances which can be said to relate exclusively to the contravenor may  
bear strongly on what level of deterrence will be ‘appropriate’.  
59. ... It is not necessary that the task of setting a penalty that is ‘appropriate’ to  
deter further contraventions should proceed by considering characteristics of  
the contravenor only to the extent that they can be said to bear upon the  
seriousness of the contravening conduct.  
(11) A civil penalty “must be fixed with a view to ensuring that the penalty is not  
such as to be regarded by [the] offender or others as an acceptable cost of doing  
business” (citing Australian Competition and Consumer Commission v TPG  
Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640, 659 at [66]; referring with  
approval to Singtel Optus Pty Ltd v Australian Competition and Consumer  
Commission [2012] FCAFC 20; (2012) 287 ALR 249, 265 at [62]: at [17].  
The Parties’ Submissions  
37. At the initial submissions on penalty, I raised with the parties the operation of the SOP  
Act. All parties provided further written submissions on the operation of that Act and its  
relevance in determining the objective seriousness of each of the respondents’ admitted  
contraventions of s 47 of the BCIIP Act.  
38. The parties’ initial submissions on penalty had focused on the principles identified in  
Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177;  
(2020) 282 FCR 580 (Pattinson) and other authorities. On 13 April 2022, the High  
Court delivered its’ decision in ABCC v Pattinson. Statements of principle referred to in  
Pattinson remain applicable save to the extent they were corrected by the High Court in  
ABCC v Pattinson. The High Court noted in its judgment that the judicial task in setting  
an “appropriate” penalty under s 546 is informed by well-settled principles: at [68]. The  
Commissioner, the Union and Mr Sutherland sought, and were granted, leave to file  
further submissions dealing with ABCC v Pattinson. Neither Mr Sneath nor Core-Form  
sought leave to file further submissions dealing with that decision.  
The Commissioner’s Submissions (CS)  
39. The Commissioner’s initial submissions dealt with the admitted contraventions by the  
respondents; declaratory relief; penalty principles; and the nature and gravity of the  
contravening conduct.  
40. The Commissioner accepts that the Protest which occurred between about 9.50am on 16  
October 2019 and approximately 10.52am that same day did not result in any  
quantifiable economic loss. During that period, the Protest was an unlawful picket for  
approximately 19 minutes insofar as it was action that directly restricted Mr Adams  
accessing the Site in the sense he was unable to park his vehicle on the Site: CS at [10],  
[18]-[20].  
41. The Commissioner refers to the admitted conduct antecedent to the contravening  
conduct and to the contravening conduct itself. I take the admitted antecedent conduct  
into account only for the purposes of giving context to the contravening conduct.  
42. The Commissioner notes that it is admitted by the respondents that the Protest was  
action that was motivated for the purpose of supporting or advocating the claims against  
Mr Sommariva by Core-Form, such that if Mr Sommariva paid the money allegedly  
owed to Core-Form, this would cause Core-Form to pay its employees, stop laying off its  
employees, and cause it to re-employ all its former employees. It is also admitted by the  
Union and Mr Sutherland that the Protest was action that was motivated by, and for the  
purpose of, advancing the industrial objectives of the Union: CS at [21].  
Declaratory relief  
43. The Commissioner refers to the Court’s wide discretion in exercising its power in s 21 of  
the Federal Court of Australia Act 1976 (Cth) to make declarations. It relies on  
Australian Competition and Consumer Commission v The Construction, Forestry,  
Mining and Energy Union [2006] FCA 1730 at [6] (Nicholson J) and submits the  
proposed declarations will serve a practical purpose in that they:  
(a) Provide an appropriate vehicle to record the Court’s disapproval of the  
contravening conduct;  
(b) Serve to vindicate the claim that the respondents contravened the BCIIP Act;  
(c) Aid the Commissioner in carrying out the functions conferred on it by the  
BCIIP Act in the future;  
(d) Assist in clarifying the law; and  
(e) May act as a deterrent to other persons from contravening the BCIIP Act.  
44. None of the respondents submit that the declarations the Commissioner seeks should  
not be made, however that question remains one for the Court. I deal with the  
declarations later in these reasons.  
Specific criteria  
45. The Commissioner submits that there are eight specific criteria for the Court to take into  
account in fixing penalty.  
1. Nature and extent of the contravening conduct  
46. First, it submits the contravening conduct was intentional, as is evident from the fact  
that Mr Sneath and a Union official attended on Mr Sommariva at the Site  
approximately two weeks prior to the Protest to demand money said to be owed to Core-  
Form.  
47. The Commissioner submits further that the unlawful picket was objectively serious;  
comprising a gathering of 20 to 30 people; extending over 19 minutes during which  
three people were harassed; Mr Adams was denied access to the Site; and the language  
used by those involved in the unlawful picket was offensive and derogatory. In  
particular, it refers to the use of the term “grub”. The Commissioner submits it is likely  
that the conduct of the respondents aroused some fear or discomfort in the individuals  
towards whom the chants and comments were directed: CS at [34].  
48. However, in its submissions, the Union and Mr Sutherland refer to the Commissioner’s  
submission about fear and/or discomfort likely to have been felt by individuals and  
submit that the Commissioner seeks, incorrectly, to expand the conduct the subject of  
sanction and have the Court infer “fear, or at least discomfort” in “employees and others  
that attended the Site that day.” The Union and Mr Sutherland submit such inferences  
are not open: First and Second respondents’ submissions (R1, R2 S) at [24(b)].  
49. In its reply submissions, the Commissioner accepts the point and withdraws the  
submission that the respondents’ conduct aroused fear and discomfort in the individuals  
to whom the chants and comments were directed: Commissioner’s Reply Submissions  
(CRS) at [4]. Accordingly, I do not give the Commissioner’s submissions on any fear  
and/or discomfort that may have been suffered by individuals any weight.  
50. Although accepting there is no evidence of economic loss, the Commissioner submits  
there was delay occasioned by the unlawful picket, as well as inconvenience in the sense  
that Mr Adams had to bring his materials to the Site on foot. It submits this type of  
unlawful conduct is inconsistent with the objects set out in s 3(1) of the BCIIP Act which  
are to:  
“... provide an improved workplace relations framework for  
building work to ensure that building work is carried out  
fairly, efficiently and productively, ... and for the benefit of  
all building industry participants, and for the benefit of the  
Australian economy as a whole.”  
2. Co-operation  
51. Second, the Commissioner acknowledges the respondents have co-operated by filing  
amended defences admitting the contraventions pleaded in the further amended  
statement of claim.  
3. The involvement of senior management  
52. Third, there is no dispute that at the time Mr Sutherland was the Acting State Secretary  
of the South Australian Branch of the Construction Division of the Union, and that Mr  
Sneath was a Manager and a Director of Core-Form.  
4. Contrition  
53. Fourth, the Commissioner submits that no contrition has been shown by the  
respondents.  
5. The size and financial position of the Union  
54. Fifth, the Commissioner points to the Union as a large, prominent and influential  
national union both cash and asset rich. There is no evidence of that before me but it  
seems to me it is a notorious fact and no party submits to the contrary. I proceed on the  
basis of the accuracy of that submission.  
6. The need for deterrence both specific and general  
55. Sixth, the Commissioner submits that the principal object of imposing civil penalties for  
contraventions of the BCIIP Act is deterrence, both specific and general. That principle  
was reiterated by the High Court in ABCC v Pattinson at [16], citing the reasons of the  
plurality in The Commonwealth v Director, Fair Work Building Industry Inspectorate  
(Agreed Penalties Case) [2015] HCA 46; (2015) 258 CLR 482 and referring with  
approval to the observations of the Full Court of this Court in The Non-Indemnification  
Personal Payment Case at [19] and the decision of French J in CSR Ltd.  
7. Prior contraventions  
56. Seventh, the Commissioner tendered as exhibit A1, a table setting out the prior conduct  
contravening industrial legislation of both the Union and Mr Sutherland. That exhibit  
reveals that since January 1999 there have been over 180 penalty and declaration  
hearings involving the Union or its representatives for contraventions of either the FWA,  
the BCIIP Act, the Building and Construction Industry Improvement Act 2005 (Cth) or  
the Workplace Relations Act 1990 (Cth) most of which involve findings of multiple  
contraventions. Since the date of the contravening conduct (16 October 2019) 24 penalty  
judgments have been delivered imposing penalties on the Union.  
57. Exhibit A1 reveals that the Union has contravened s 47(1) of the BCIIP Act on three  
occasions:  
(a) 25 January, 30 to 31 January and 1 February 2019;  
(b) 14 May 2018; and  
(c) 8 May 2017.  
58. Exhibit A1 also reveals that Mr Sutherland has contravened industrial legislation on four  
occasions:  
(a) 27 June 2014 and 1, 4, 7 and 17 July 2014;  
(b) In about October 2012;  
(c) 8 March, 9 August, 28, 30 October, 7, 11-12, 18, 21, 25 November 2013; and  
(d) 28 February and 1 March 2011.  
59. In each of these four cases, the Union was also involved in the contraventions.  
60. Neither Mr Sneath nor Core-Form have committed contraventions of industrial  
legislation prior to this occasion. On that basis, the Commissioner submits the need for  
specific deterrence is diminished.  
8. Proportionality  
61. The eighth of the specific criteria identified by the Commissioner is “proportionality”  
which the High Court has made clear has a role to play in fixing penalty under s 546 of  
the FWA, only to the extent that the term, “... is understood to refer to a penalty that  
strikes a reasonable balance between deterrence and oppressive severity.”: ABCC v  
Pattinson at [41]. The notion of proportionality in the sense used in the criminal law has  
no part to play in the determination of a civil penalty. In ABCC v Pattinson, the High  
Court said at [39]:  
The proposition for which Veen [No 2] stands in the criminal law is that  
a sentence that is imposed with a view to protecting the community  
from a criminal offender must not be disproportionate to the  
seriousness of the offending for which the offender is being sentenced.  
That is because, in the criminal law, the purpose of retribution – that is,  
imposing a punishment that fits the crime and is proper because it is  
what the offender deserves – constrains the sentencing discretion. As  
noted above, it is well-settled that, in the civil penalty regime of the Act,  
retribution has no part to play.  
(footnotes omitted)  
SOP Act  
62. In its supplementary submissions in relation to the SOP Act, the Commissioner seeks  
leave to read and rely upon paragraphs 5 and 10, and annexure JS-3 to the Sommariva  
affidavit.  
63. I am informed by the Commissioner in its written submissions that the Sommariva  
affidavit was served on the respondents on 4 February 2021, but had not been filed. The  
affidavit was filed subsequently on 23 March 2022.  
64. The respondents oppose the Commissioner’s application to read and rely upon the  
identified paragraphs and annexure JS-3 to the Sommariva affidavit on the grounds of  
relevance. Importantly, none of the respondents assert that they have not seen the  
affidavit nor do they assert prejudice or surprise. Core-Form and Mr Sneath submit that  
if the Court grants leave to the Commissioner to read and rely upon paragraphs 5 and 10  
of the Sommariva affidavit, and annexure JS-3 to that affidavit, the Court should also  
read paragraph 11 and annexure JS-4 of the Sommariva affidavit which responds to  
Core-Form’s letter of demand dated 30 April 2019.  
65. For reasons I give later, paragraphs 5, 10, 11 and annexures JS-3 and JS-4 to the  
Sommariva affidavit are relevant to both the objective seriousness of the contravening  
conduct and specific deterrence. I grant leave to the Commissioner and to the sixth and  
eighth respondents to read and rely on paragraphs 5, 10 and 11 and annexures JS-3 and  
JS-4 to the Sommariva affidavit.  
66. The Commissioner refers to the objects in s 3 of the SOP Act which are:  
3—Object of Act  
(1) The object of this Act is to ensure that a person who undertakes to carry out  
construction work (or who undertakes to supply related goods and services) under  
a construction contract is entitled to receive, and is able to recover, progress  
payments in relation to the carrying out of that work and the supplying of those  
goods and services.  
(2) The means by which this Act ensures that a person is entitled to receive a  
progress payment is by granting a statutory entitlement to such a payment  
regardless of whether the relevant construction contract makes provision for  
progress payments.  
(3) The means by which this Act ensures that a person is able to recover a progress  
payment is by establishing a procedure that involves—  
(a) the making of a payment claim by the person claiming payment;  
and  
(b) the provision of a payment schedule by the person by whom the  
payment is payable; and  
(c) the referral of any disputed claim to an adjudicator for  
determination; and  
(d) the payment of the progress payment so determined.  
(4) It is intended that this Act does not limit—  
(a) any other entitlement that a claimant may have under a  
construction contract; or  
(b) any other remedy that a claimant may have for recovering any such  
other entitlement.  
67. It relies upon the observations of Finkelstein J in Protectavale Pty Ltd v K2K Pty Ltd  
[2008] FCA 1248 at [7] where his Honour said, in relation to the payment claim regime  
under the Victorian security of payment legislation, (which is substantially the same as  
the South Australian regulation):  
The Payment Act places the claimant in a privileged position in the  
sense that he acquires rights that go beyond his contractual rights. The  
premise that underlies the legislation is that cash flow is the lifeblood of  
the construction industry and that the principal under a construction  
contract should pay now and argue later. (Citations omitted).  
68. The Commissioner submits that in what was none other than a commercial dispute  
between Core-Form and Mr Sommariva, Core-Form could have exercised its rights  
under the SOP Act to recover progress payments in relation to the work it had carried  
out for Mr Sommariva. It submits that the legislative scheme in the SOP Act is a matter  
the Court may take into account when considering the objective seriousness of the  
respondents’ contravening conduct. It refers to s 81(6)(c) of the BCIIP Act and submits  
the SOP Act is relevant to the circumstances in which the contravention took place: CS at  
[10].  
Range of pecuniary penalties  
69. There is no dispute that the pecuniary penalty for contravening s 47(1) of the BCIIP Act  
is a “Grade A civil penalty”: s 47(1). Section 81 of the BCIIP Act provides that the  
maximum pecuniary penalty for a Grade A civil remedy provision is 1000 penalty units if  
the defendant is a body corporate (the Union and Core-Form) and otherwise 200  
penalty units (Mr Sutherland and Mr Sneath). As at 16 October 2019, the value of a  
penalty unit was $210: Crimes Amendment (Penalty Unit) Act 2017 (Cth), Schedule 1.  
70. On that basis, the maximum penalty that might be imposed on each of the Union and  
Core-Form is $210,000 and the maximum penalty that might be imposed on each of Mr  
Sutherland and Mr Sneath is $42,000.  
71. The Commissioner seeks a penalty in the high range for the Union on the basis that:  
(1) The conduct was serious, deliberate, unjustified and involve the actual  
organising of the unlawful picket;  
(2) The contravention was antithetical to the BCIIP Act;  
(3) The Union has not demonstrated contrition or corrective action;  
(4) The Union is a recidivist offender; and  
(5) The Union is a large, asset rich and well-resourced organisation, such that a  
small penalty risks being ineffective as a deterrent: CS at [65].  
72. As to Mr Sutherland, the Commissioner seeks a penalty in the high range given his prior  
contraventions of industrial legislation, that on two occasions the contraventions  
involved similar conduct and the fact that on this occasion he organised the unlawful  
picket.  
73. In relation to Core-Form and Mr Sneath, the Commissioner seeks penalties at the higher  
end of the low range on the basis that their contraventions are confined to engaging in  
the unlawful picket and neither had previously contravened industrial legislation.  
Submissions for the Union and Mr Sutherland (R1, R2 S)  
74. The Union and Mr Sutherland submit that the distinction between the unlawful picket  
and the Protest (which was lawful) must be kept plainly in mind. They submit it is the  
organisation of the unlawful picket that is the subject of the contravening conduct.  
75. By way of background, the Union and Mr Sutherland admit the existence of the dispute  
between Core-Form and Mr Sommariva that arose in 2018 and the meeting on 1 October  
2019 where an official of the Union was present when various claims were made by  
Core-Form. The Union and Mr Sutherland submit that the unlawful picket was limited  
to directly restricting Mr Adams access to the Site in his vehicle. He was not prevented  
from walking onto the Site.  
Penalty - relevant principles  
76. On the question of penalty, there is some difference between the applicant and the first  
and second respondents in relation to the identification of the relevant principles.  
77. The Union and Mr Sutherland refer to Australian Building and Construction  
Commissioner v Construction, Forestry, Mining and Energy Union & Anor [2017]  
FCAFC 113; (2017) 254 FCR 68 at [102]- [103] (Dowsett, Greenwood and Wigney JJ),  
and their identification of the principles in that decision which, although expressed  
slightly differently, nonetheless are consistent with those identified by French J in CSR  
Ltd to which I have referred above at [34], and which were referred to with approval to  
by the High Court in ABCC v Pattinson at [18].  
Objective seriousness of the contravening conduct  
78. The Union and Mr Sutherland submit that the objective seriousness of the contravening  
conduct was at the lower end of the scale since it only involved one vehicle; the  
obstruction was for a short time; there was no quantifiable economic loss; the conduct  
emerged from a protest that drew attention to a legitimate grievance between developer  
and contractor; and the organisation of the unlawful picket arose in the course of a  
protest when a vehicle arrived seeking entry to the Site: R1, R2 S at [21].  
79. The Union and Mr Sutherland submit further that the consequence of the unlawful  
picket was a brief inconvenience: R1, R2 S at [22].  
80. The Union and Mr Sutherland submit that it is not open to infer, as the Commissioner  
asserts, that the unlawful picket was pre-meditated because of the meeting on Site on 1  
October 2019 between Mr Sommariva, Core-Form and a Union official in relation to  
disputed claims.  
Co-operation  
81. Next, the Union and Mr Sutherland submit they co-operated with the Commissioner by  
making admissions at a very early stage in the proceedings and after mediation following  
the filing of defences. The result is the use of public funds and resources has been  
avoided. I accept that submission.  
Contrition  
82. As to contrition, I accept the submissions of the first and second respondents that whilst  
contrition is important, its absence is not a matter of aggravation: Director of the Fair  
Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [87] (White J).  
Past contraventions  
83. In their initial submissions, the Union and Mr Sutherland identified five principles taken  
from the Full Court’s decision in Pattinson and other authorities which they submit  
reflects the proper approach to the imposition of an appropriate civil penalty under s  
546 of the FWA.  
84. Those five principles are:  
(1) The principle of proportionality: R1, R2 S at [32];  
(2) The appropriate penalty is imposed in light of the objective deterrence in  
relation to that particular contravention such that the penalty imposed is  
appropriate to deter a future contravention by the client of the type before the  
Court: R1, R2 S at [33];  
(3) The power to impose a pecuniary penalty that the Court considers appropriate  
in s 546(1) of the FWA must be exercised reasonably: R1, R2 S at [34];  
(4) In determining the appropriate penalty, all the circumstances of the case are to  
be considered, including personal circumstances of the contravenor. Prior  
contraventions may bear upon: (1) the seriousness of the contravention under  
consideration; and (2) the degree of deterrence required to deter a repetition of the  
contravention under consideration. Attention to the nature and context of  
circumstances of the contravention under consideration is required: R1, R2 S at  
[35], [36]; and  
(5) Recidivism does not permit the imposition of a penalty at or near the  
maximum. An evaluation of the objective characteristics of the contravention is  
required: R1 R2 S at [37].  
85. In its supplementary written submissions (R1, R2 SS) filed following the High Court’s  
decision in ABCC v Pattinson, the first and second respondents accept that the first of its  
five principles, proportionality, in the sense used in the criminal law, has no part to play  
in the fixing of a civil penalty: R1, R2 SS at [4].  
86. The Commissioner, the Union, and Mr Sutherland differ on the second principle  
identified by the first and second respondents. The Union and Mr Sutherland submit  
that an appropriate penalty falls to be determined by reference to the particular  
contravention under consideration. I do not accept that submission. To do so is to ignore  
the High Court’s clear statement of principle as to proportionality as that term is  
understood in the criminal law, and it having no role to play in fixing a civil penalty.  
87. The third principle, which is that the power to impose an appropriate penalty must be  
exercised reasonably, is uncontroversial. The power in s 546 to impose a pecuniary  
penalty that a court considers “appropriate” must be exercised such that any penalty that  
is imposed “... strikes a reasonable balance between deterrence and oppressive severity”:  
ABCC v Pattinson at [41] (Kiefel CJ et al).  
88. The fourth and fifth principles concern recidivism. The fifth principle that recidivism  
does not permit the imposition of a penalty at or near the maximum cannot be accepted  
as an accurate statement of principle in light of the High Court decision in ABCC v  
Pattinson.  
89. Insofar as the fourth principle is directed at consideration being given to all the  
circumstances of the case, including personal circumstances of the contravenor, the  
extent and weight to be given to those personal circumstances of the contravenor will  
vary with the case. The circumstances of the contravention of s 47 of the BCIIP Act,  
which prohibits a person organising or engaging in an unlawful picket, is relevant to the  
objective seriousness of the contravening conduct and must be seen against the main  
object of that Act, which includes ensuring that building work is carried out fairly,  
efficiently and productively: s 3 of the BCIIP Act.  
The Union and Mr Sutherland’s supplementary submissions (R1, R2 SS)  
90. In their supplementary submissions, the first and second respondents submit that ABCC  
v Pattinson involved the imposition of the maximum penalty informed by factual  
circumstances involving a repetition of similar conduct having occurred for the same  
reasons which had been sanctioned by civil penalties in a series of earlier matters  
occurring over many years.  
91. The public interest protected, in this case by s 47 of the BCIIP Act, is in ensuring that  
building work is carried out fairly, efficiently and productively. I consider that other  
instances of contravention, whether of the BCIIP Act or other industrial legislation, with  
the same or similar objects to the BCIIP Act, and which are designed to protect the same  
or similar public interests, are relevant to both specific and general deterrence, as well as  
to the objective seriousness of the contravention when determining an appropriate  
pecuniary penalty. To hold otherwise is to place an interpretation of the High Court’s  
majority judgment in ABCC v Pattinson which is not open. Accordingly, I do not accept  
the submission that the determination of an appropriate penalty is limited by  
considerations of the same specific, or even factually similar conduct on prior occasions.  
92. Against that background, the first and second respondents’ supplementary submission  
that deterrence here is to be directed at ensuring that the particular unlawful conduct  
that occurred in the context of the lawful protest not re-occur cannot be accepted: R1 R2  
SS at [14]-[18].  
93. That, of course, does not mean that the power in s 546 of the FWA in fixing an  
appropriate penalty is to be exercised oppressively.  
SOP Act  
94. Although in this section of the reasons I am dealing with the first and second  
respondents’ submissions, it is convenient to deal with the further written submissions  
filed by all respondents dealing with the relevance of the SOP Act.  
95. The respondents submit that the SOP Act is not relevant to these proceedings. Apart  
from relevance, the submissions filed by the sixth and eighth respondents refer to the  
operation of the SOP Act. I deal with the operation of the SOP Act later in these reasons.  
96. The Union and Mr Sutherland submit that there are three reasons why the SOP Act is  
not relevant. First, they submit that the factual basis for the determination of the  
appropriate pecuniary penalty is found in the further amended statement of claim  
(FASoC) and the admissions made by the first and second respondents in the amended  
defence (R1, R2 AD). Consequently, they submit that the factual basis does not permit  
any conclusion to be drawn adverse to the first and second respondents with respect to  
the engagement of the SOP Act.  
97. I do not accept that the factual basis does not permit an adverse conclusion to be drawn  
against the first and second respondents with respect to the engagement of the SOP Act.  
That is because the First and Second Respondents admit:  
(1) A dispute arose between Core-Form and Mr Sommariva in relation to payment  
for work done on the Site by Core-Form: FASoC at [16]; R1, R2 AD at [16];  
(2) Mr Sneath and a Union official attended the front entrance of the Site on 1  
October 2019 and met with Mr Sommariva during which, amongst other things, a  
Union official said to Mr Sommariva words to the effect, “where is Andrew’s [Mr  
Sneath’s] tools and the container, and you owe him money”. Mr Sneath said words  
to the effect of, “you owe us money”: FASoC at [21]; R1, R2 AD at [21];  
(3) During the Protest, persons wearing Union branded clothing held signs saying,  
“PAY UR BILLS”: FASoC at [24]; R1, R2 AD at [24];  
(4) Mr Sneath held a sign saying, JOB DONE WHERE’S THE MONEY”: FASoC at  
[24]; R1, R2 AD at [24], sixth and eighth respondents’ amended defence (R6, R8  
AD) at [24];  
(5) During the Protest some of the protesters held signs displaying the following  
phrases: FASoC at [25]; R1, R2 AD at [25]:  
(a) “PAY UR BILLS”;  
(b) “SOMMARIVA RIPS OFF WORKERS”;  
(c) “STOP RIPPING OFF SUBBIES”; and  
(d) “JOB DONE WHERE’S THE MONEY”;  
(6) Some of the protesters used a megaphone to lead the protesters in various  
chants calling on Mr Sommariva to pay his bills: FASoC at [26], [28]; R1, R2 AD at  
[26], [28]; and  
(7) The claims supported or advocated by the first and second respondents also  
involved a claim that Core-Form should be paid the money it was allegedly owed  
for the work done for Mr Sommariva on the Site: FASoC at [35]; R1, R2 AD at [35].  
98. Further, the Union and Mr Sutherland submit that the conduct emerged from a protest  
that drew attention to a legitimate grievance between a developer and contractor: R1, R2  
S at [21]. That grievance was a commercial dispute over non-payment of invoices said to  
be due to Core-Form from Mr Sommariva, a subject which is at the heart of the SOP Act.  
99. The first and second respondents submit further in relation to this first reason, that  
there are no facts before the Court that show what the first and second respondents  
knew about the process of making a claim by Core-Form and what Mr Sommariva did in  
response to that claim. They submit that no logical inference arises that the first and  
second respondents knew anything about these matters or formed any view about them  
at the time.  
100. I do not accept that submission. The Union and Mr Sutherland admit that they  
organised the unlawful picket. The content of what occurred during that Protest and  
during the unlawful picket makes it clear that the Union and Mr Sutherland chose to  
involve themselves in what was, to their knowledge, a commercial dispute between Core-  
Form and Mr Sommariva. The ignorance of both the Union and Mr Sutherland (if that  
be the case) of the procedure under the SOP Act is not to the point.  
101. The second reason advanced by the first and second respondents is that there is a  
difficulty in being satisfied that Core-Form had a course available to it under the SOP  
Act and should have pursued it. They submit that it is not open for the Commissioner to  
choose selectively from the Sommariva affidavit as against Mr Sneath and Core-Form,  
isolated from responsive information in the same affidavit. I do not accept the second  
reason advanced by the Union and Mr Sutherland. I have granted leave to the  
Commissioner, Mr Sneath and Core-Form to read and rely upon those parts of the  
Sommariva affidavit as they wish.  
102. Associated with the second reason that the Sommariva affidavit should not be received  
or considered, is the submission by the Union and Mr Sutherland that if any further  
material is to be admissible, the proper course was to take a further affidavit dealing  
with discrete issues that it proposes to address. I do not accept that submission either.  
The Court regularly considers discrete parts of documents as required, giving no weight  
to those matters not read or relied upon or otherwise the subject of a successful  
objection.  
103. The third reason advanced is that the making of a claim under the SOP Act does not bear  
logically on the objective seriousness of the conduct of the Union and Mr Sutherland.  
The Union and Mr Sutherland submit that the pursuit of such a course under the SOP  
Act was never a course available to them such as to make their conduct more serious.  
Whereas I accept that neither the Union or Mr Sutherland were able to pursue a course  
under the SOP Act, nonetheless I do not accept that the availability of such a claim under  
that Act does not bear logically on the objective seriousness of their conduct. Neither the  
Union nor Mr Sutherland have submitted that they were unaware of the provisions of  
the SOP Act.  
104. However, notwithstanding the Union through Mr Sutherland chose to interfere in a  
commercial dispute between Core-Form and Mr Sommariva, and in so doing engaged in  
the contravening conduct, I accept that at the time it did so, other than the claimed  
Payment Claim in annexure JS-3 to the Sommariva affidavit, Core-Form had not  
pursued its rights under legislation, notwithstanding the SOP Act’s object of protecting  
the cash flow of contractors and suppliers.  
105. Accordingly, I accept that the existence of the SOP Act procedure is not, in this case, a  
matter going to the objective seriousness of the contravening conduct of the Union and  
Mr Sutherland.  
106. In their submissions on the SOP Act, Mr Sneath and Core-Form refer to the judgment of  
Doyle J in The Trustee for Allway Unit Trust (t/as Westside Mechanical Contracting  
Pty Ltd) v R & D Air-conditioning Pty Ltd and Ors [2018] SASC 46, at [36]-[51] where  
his Honour observed it is well-settled that judicial review of an adjudicator’s  
determination under the SOP Act is confined to review for jurisdictional error.  
107. Based on that statement, Mr Sneath and Core-Form submit that what might constitute  
jurisdictional error may include:  
(a) The absence of a valid reference date to support a payment claim which is  
submitted to adjudication;  
(b) A failure to comply with the time limit specified by the legislation; and  
(c) A denial of procedural fairness by the adjudicator.  
108. They submit further that in limited circumstances a stay of adjudication may be ordered,  
citing Romaldi Constructions Pty Ltd v Adelaide Interior Linings Pty Ltd (No 2) [2013]  
SASCFC 124 at [76]- [80] (Blue J).  
109. It is not clear what Mr Sneath and Core-Form seek to make of these submissions.  
Presumably it is that even if Core-Form did utilise the procedure under the SOP Act, an  
adjudicator’s decision in its favour could still be challenged.  
110. Mr Sneath and Core-Form submit further that the Court does not know why Core-Form  
did not pursue its legal rights under the SOP Act or what the outcome would have been.  
111. With respect, that submission misses the point which is that there existed at the relevant  
time, and still exists, legislation which has as its object to ensure that a person who  
undertakes to carry out construction work (or who undertakes to supply related goods  
and services under a construction contract) is entitled to receive, and is able to recover,  
progress payments in relation to the carrying out of that work and the supplying of those  
goods and services.  
Submissions of the sixth and eighth respondents on penalty  
112. Mr Sneath and Core-Form submit that given:  
(1) The circumstances of the unlawful picket were of the lower end of the scale of  
seriousness;  
(2) Their co-operation in resolving the action early in the proceedings; and  
(3) They have no prior convictions of the BCIIP Act;  
any penalty should be in the low range.  
113. They refer to s 81(6) of the BCIIP Act. I accept that the matters in s 81(6) are matters the  
Court must take into account, and I do so, but observe that those considerations are not  
exhaustive.  
Consideration – the Union & Mr Sutherland  
The objective seriousness of the contravening conduct  
114. The contravening conduct of the Union and Mr Sutherland for which I am determining  
an appropriate pecuniary penalty is for organising the unlawful picket, but that cannot  
be seen in isolation. The surrounding circumstances provide context to the unlawful  
picket.  
115. In Australian Building and Construction Commissioner v Construction, Forestry,  
Mining and Energy Union & Another [2017] FCAFC 113; (2017) 254 FCR 68, at [103],  
(the Queensland Infrastructure Case), the Full Court (Dowsett, Greenwood and  
Wigney JJ) observed:  
The factors relating to the objective seriousness of the contravention  
include: the extent to which the contravention was the result of  
deliberate, covert or reckless conduct, as opposed to negligence or  
carelessness; whether the contravention comprised isolated conduct, or  
was systematic or occurred over a period of time; if the defendant is a  
corporation, the seniority of the officers responsible for the  
contravention; the existence, within the corporation, of compliance  
systems and whether there was a culture of compliance at the  
corporation; the impact or consequences of the contravention on the  
market or innocent third parties; and the extent of any profit or benefit  
derived as a result of the contravention.  
116. The Union and Mr Sutherland submit that an inference that the contravening conduct  
was premeditated is not open. I do not accept that submission.  
117. The contravening conduct occurred in the context of a protest consequent upon a  
commercial dispute between Core-Form and Mr Sommariva. Mr Sutherland was present  
at the Protest and he admitted to organising the unlawful picket. I consider it would have  
been very easy to ensure that those wearing Union insignia, or holding signs or placards  
identifying the holder with the Union, did not engage in an unlawful picket. It seems to  
me that an instruction from Mr Sutherland to those taking part in the Protest, prior to  
the Protest, not to engage in the contravening conduct was both necessary and prudent.  
118. Under those circumstances, I infer that the unlawful picket was pre-meditated, in the  
sense that it was planned prior to the Protest.  
119. I do not accept the submissions of the Union and Mr Sutherland that the contravening  
conduct is at the lower end of seriousness and a “brief inconvenience”. The contravening  
conduct involved the prevention of access to a working site. Although it may be that  
there was no quantifiable economic loss suffered in this case, that is not to the point.  
Interruptions to work on a construction site always come at a cost even though the cost  
may not be objectively quantifiable. I accept the Commissioner’s submission that the  
contravening conduct was inconsistent with the objects set out in s 3(1) of the BCIIP Act.  
120. I find the contravening conduct was objectively serious.  
Co-operation and contrition  
121. In the Queensland Infrastructure Case at [163]-[164] the Full Court said:  
163 ... [the Union] co-operated with the Commissioner in relation to  
these proceedings by admitting the contraventions and reaching  
agreement in relation to the facts. Importantly, the admissions and  
agreed facts were also not withdrawn after the initial agreement in  
relation to the penalty amounts was withdrawn by the Commissioner.  
There is no doubt that the CFMEU should receive credit for this  
cooperation. From a public policy perspective, it is important to  
encourage such cooperation by reflecting it in the penalties imposed. It  
also shows willingness on the part of the CFMEU to accept  
responsibility for its actions and to facilitate the course of justice. The  
fact that the proceedings were not defended saved the community the  
expense of a potentially lengthy contested hearing.  
[164] It is, however, doubtful in all the circumstances that the CFMEU’s  
cooperation with the regulator could really be said to demonstrate  
contrition or remorse. In some respects the cooperation reflects  
nothing more than an acceptance of the inevitable. The CFMEU did not  
adduce any evidence of contrition or remorse. Indeed, there was not  
even an expression of contrition or remorse in its submissions. There  
was no evidence from which it could be inferred that the CFMEU  
intended to change its ways. There was certainly no suggestion, let  
alone evidence, to the effect that the CFMEU intended to set up any  
systems, processes, procedures or education to ensure that its officers  
did not encourage unlawful industrial action in the future.  
122. As was the case in the Queensland Infrastructure Case, in this matter there was no  
expression of contrition by the Union or Mr Sutherland. So too, there was no evidence  
that the Union intends to change its ways or set up any systems, processes, procedures  
or education to ensure that its officers did not encourage unlawful industrial action in  
the future.  
123. In Australian Building and Construction Commissioner v Construction, Forestry,  
Maritime, Mining and Energy Union (the WGC Cranes Case) [2021] FCA 622 at [145],  
Katzmann J referred to the observations of Bromberg J in Australian Building and  
Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy  
Union (Cardigan St Case) [2018] FCA 957 at [86] and 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 at  
[77], in which his Honour observed:  
77 In relation to specific deterrence I also take into account that,  
despite the admissions made by the respondents in relation to the  
instant contraventions, there is no evidence before me of the CFMMEU  
taking any compliance action to counsel, educate or inform MacDonald  
or Long in order to prevent the reoccurrence of contravening conduct  
by them in the future. Nor is there any evidence before me of any  
compliance regime ever put in place by the CFMMEU to address its  
long history of prior contraventions. As I said in the Cardigan Street  
Case at [85] “[t]he absence of any evidence of compliance systems  
within the CFMMEU is particularly alarming given the heavily critical  
comments of the CFMMEU made by this Court in many cases over  
recent years”. As I also there said at [86] “[a]n organisation faced with a  
litany of contraventions over an extended period of time, which  
repeatedly incurs not only significant financial penalties but also  
pointed judicial criticism, would necessarily put in place measures to  
change the cultural or normative conduct of the contravening  
behaviours of its officers and employees” unless such behaviour was  
condoned by the senior leadership of the organisation. That inference,  
made in the Cardigan Street Case, is equally available here. All of that  
is demonstrative of a compelling need for specific deterrence.  
124. Bromberg J’s observations are equally applicable to this matter. The absence of any  
suggestion, far less evidence of action taken by the Union to ensure unlawful industrial  
action does not occur in the future, is indicative that the Union has not taken heed of  
repeated penalties and judicial criticism. As Bromberg J observed, there is a compelling  
need for specific deterrence.  
125. I give credit for the co-operation demonstrated by both the Union and Mr Sutherland  
and the consequent benefits identified by the Full Court in the Queensland  
Infrastructure Case at [163].  
Prior contraventions – the Union and Mr Sutherland  
126. In the WGC Cranes Case at [140] and [145], Katzmann J observed:  
140. ... the Union has an appalling record of contravening industrial  
laws. It has frequently been excoriated in this Court for its recidivism  
and in Non-Indemnification Case (HC) at [131] ([2018] 262 CLR 157,  
Keane, Nettle and Gordon JJ) the High Court observed that the  
CFMEU (the Union before the amalgamation in 2018 with the  
Maritime Union of Australia and the Textile, Clothing and Footwear  
Union of Australia) was “well-known to [that] court for its  
contumacious disregard of court orders”. (Citations in brackets  
provided).  
127. Her Honour continued:  
145. ... the Union’s overall record is indicative of an indifference to, if  
not a disdain for, the law. Simply put, the Union behaves as though it is  
above the law. It adduced no evidence to suggest that it had addressed  
its record or intended to do so.  
128. I accept the Commissioner’s submission that the contravening conduct by the Union was  
serious, deliberate and unjustified. Further, I accept that the contravening conduct was  
antithetical to the objects of the BCIIP Act.  
129. This offending is both another example and a continuation of the Union’s appalling  
behaviour (whether in this form or in its pre-2018 amalgamation with The Maritime  
Union of Australia). I consider the Union’s record of prior contraventions is a matter  
going to both the objective seriousness of its contravening conduct and is a factor  
indicating an ongoing need for specific deterrence.  
130. This is the fifth time Mr Sutherland has engaged in behaviour which contravenes  
industrial legislation. I consider Mr Sutherland’s record of prior contraventions is a  
matter going to both the objective seriousness of his contravening conduct and is a factor  
indicating an ongoing need for specific deterrence.  
Maximum penalty  
131. Amongst other things, the first and second respondents’ supplementary submissions  
seek to dismiss the Commissioner’s characterisation of the unlawful picket as the  
perpetuation of a deliberate policy of disobedience so as to justify the maximum penalty.  
In so doing, the Union and Mr Sutherland raise two related but separate points.  
132. The first point is an attempt by the Union and Mr Sutherland to isolate the contravening  
conduct from the broader perpetuation of a deliberate policy of disobedience by the  
Union and its officers. That attempt must be rejected. As Katzmann J observed in the  
WGC Cranes Case, to which I have referred above, the Union is notorious for its  
contravention of industrial laws.  
133. The second point made by the Union and Mr Sutherland is that it is not the case that the  
imposition of the maximum penalty or a penalty approaching the maximum under s 546  
of the FWA is called for in circumstances where the contravenor is a recidivist offender.  
That submission may be accepted, at least as a general proposition. In ABCC v Pattinson  
at [46], the High Court specifically disavowed that approach noting that, “... an  
‘appropriate’ penalty is one that strikes a reasonable balance between oppressive severity  
and the need for deterrence in respect of the particular case.”  
Resources  
134. In determining an appropriate pecuniary penalty, I take into account that the Union is a  
large, prominent and influential national union, both cash and asset rich.  
Penalty  
135. In all the circumstances, I determine that the following penalties should be imposed on  
the Union and Mr Sutherland:  
(a) For the Union’s contravention of s 47(1) of the BCIIP Act, $189,000; and  
(b) For Mr Sutherland’s contravention of s 47(1) of the BCIIP Act, $38,000.  
Consideration – Core-Form & Mr Sneath  
Objective seriousness of the contravening conduct  
136. I take the surrounding circumstances into account in providing context to the unlawful  
picket. Core-Form and Mr Sneath have admitted engaging in the unlawful picket. It  
would have been very easy for Mr Sneath not to have engaged in the contravening  
conduct and I infer he chose to do so.  
SOP Act  
137. The security of payment legislation is uniform in New South Wales, Queensland, South  
Australia, Victoria, Tasmania and the Australian Capital Territory, with the latter States  
and the Australian Capital Territory adopting the New South Wales Act. There are  
differences in the equivalent legislation in Western Australia and the Northern Territory,  
however, notwithstanding any legislative differences, the policy behind security of  
payment legislation is the same.  
138. In Amflo Constructions Pty Limited v Anthony Jeffries [2003] NSWSC 856 at [25]  
Campbell J (as his Honour then was) summarised the operation of the New South Wales  
legislation in these terms:  
A fundamental feature of the legislation is that, apart from the fact that  
parties to a construction contract cannot contract out of the rights given  
by the legislation (section 34) nothing in Part 3 of the Act (section 13-32  
inclusive) affects any of the rights that parties to a construction contract  
have (section 32(1)). The concern of the Act is with maintaining the  
cash flow of claimants, by enabling them to recover quickly amounts  
which the adjudication process says they are entitled to. It is possible  
for the person who pays the amount of money which an adjudication  
has found due to seek to reclaim that money, in court proceedings  
which decide what the ultimate legal rights of the parties are. An  
evident purpose of the Act is that, if there is to be such litigation, it will  
start from a position where the claimant has been paid the amount  
which the adjudication process has decided should be paid.  
139. McDougall J in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA  
190; (2010) 78 NSWLR 393 at [207]- [209] described the operation of the SOP Act  
(NSW):  
207 The Security of Payment Act operates to alter, in a fundamental  
way, the incidence of the risk of insolvency during the life of a  
construction contract. As Keane JA said, of the not dissimilar  
Queensland statute, the Building and Construction Industry Payment  
Act 2004 (Qld), in RJ Neller Building P/L v Ainsworth [2008] QCA  
397 at [40], the statute “seeks to preserve the cash flow to a builder  
notwithstanding the risk that the builder might ultimately be required  
to refund the cash in circumstances where the builder’s... inability to  
repay could be expected to eventuate”. It followed, his Honour said,  
that the risk of inability to repay, in the event of successful action by the  
other party, must be regarded as one that the legislature has assigned to  
that other party. The same is true of the regime established by the  
Security of Payment Act.  
208 Further, the Security of Payment Act operates in a way that has  
been described as “rough and ready” or, less kindly, as “Draconian”. It  
imposes a mandatory regime regardless of the parties’ contract: s 34. It  
provides extremely abbreviated time frames for the exchange of  
payment claims, payment schedules, adjudication applications and  
adjudication responses. It provides a very limited time for adjudicators  
to make their decisions on what, experience shows, are often extremely  
complex claims involving very substantial volumes of documents (see,  
for example, my decision in Laing O’Rourke Australia Construction v  
H&M Engineering and Construction [2010] NSWSC 818 at [8]).  
209 The Security of Payment Act gives very valuable, and commercially  
important, advantages to builders and subcontractors. At each stage of  
the regime for enforcement of the statutory right to progress payments,  
the Security of Payment Act lays down clear specifications of time and  
other requirements to be observed. It is not difficult to understand that  
the availability of those rights should depend on strict observance of the  
statutory requirements that are involved in their creation.  
140. As to the submission by Mr Sneath and Core-Form about the decision in Romaldi  
Constructions and the passages cited, the observations of Blue J are hypothetical.  
Nevertheless, I accept that as a general principle it may be possible to obtain a stay of  
enforcement proceedings brought consequent upon an adjudicator’s decision made  
under the SOP Act, however that will be entirely dependent upon the particular  
circumstances. In circumstances where the contravening conduct occurred in the  
context of a commercial dispute over non-payment of invoices, I do not consider that the  
mere possibility of a stay of enforcement proceedings brought consequent upon an  
adjudicator’s decision has the result that the legislative scheme under the SOP Act is an  
irrelevant consideration when determining a civil penalty.  
141. The SOP Act recognises the importance of cash flow to contractors and sub-contractors  
in the construction industry. Such is the effect of the legislative scheme that it has been  
described as “draconian”: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd at [208]  
(McDougall J).  
142. That the existence of the SOP Act was known to Core-Form is evident from the  
statement in annexure JS-3 to the Sommariva affidavit.  
143. Core-Form responded to the Commissioner reading and relying upon paragraphs 5, 10  
and annexure JS-3 to the Sommariva affidavit by referring to paragraph 11 and annexure  
JS-4 to that affidavit. That paragraph and that annexure demonstrate that Mr  
Sommariva considered that Core-Form’s payment claim was not a proper claim under  
the SOP Act. Whether or not that is correct, it does not justify, or in any way ameliorate,  
a contravention of s 47 of the BCIIP Act.  
144. The failure by Core-Form to pursue the recovery under the SOP Act, whether because it  
chose not to or for other reasons, does not mean that the existence of the legislative  
scheme provided by the SOP Act is a matter that is irrelevant in the context of the  
contravening conduct in this matter.  
145. The SOP Act gave Core-Form the opportunity to obtain an adjudicator’s decision on its  
payment claims. Mr Sneath is a Director of Core-Form. The failure by Core-Form to  
pursue its rights under the SOP Act, but instead engage in the contravening conduct, is a  
matter I take into account as going to the objective seriousness of the contravening  
conduct of both Core-Form and Mr Sneath.  
146. In all the circumstances, I find the contravening conduct by Mr Sneath and by Core-  
Form was objectively serious.  
147. Given the object of the SOP Act, the failure by Core-Form and Mr Sneath to utilise the  
SOP Act procedure and instead resort to engaging in an unlawful picket is demonstrative  
of a need for both specific and general deterrence.  
Prior contraventions  
148. I take into account that both Core-Form and Mr Sneath have no prior contraventions of  
industrial legislation.  
Co-operation and contrition  
149. I give credit to Mr Sneath and Core-Form for their co-operation.  
150. Although there was co-operation by both Core-Form and Mr Sneath, there was no  
contrition expressed and no evidence of action taken by Core-Form to ensure unlawful  
industrial action does not occur in the future.  
151. I take into account that although Core-Form and Mr Sneath have no prior  
contraventions of industrial legislation, nonetheless, given the principal object of  
imposing a civil penalty is deterrence, Core-Form’s failure to take preventative steps to  
ensure unlawful industrial action does not occur is demonstrative of the need for both  
specific deterrence and general deterrence.  
Penalty  
152. In all the circumstances, I determine that the following penalties should be imposed on  
Mr Sneath and Core-Form:  
(a) For Mr Sneath’s contravention of s 47(1) of the BCIIP Act, $25,000; and  
(b) For Core-Form’s contravention of s 47(1) of the BCIIP Act, $132,000.  
CONCLUSION  
Declarations  
153. I accept the Commissioner’s submission that making declarations will serve a practical  
purpose for the reasons identified by Nicholson J in Australian Competition and  
Consumer Commission v Construction, Forestry, Mining and Energy Union at [6].  
154. The declarations sought by the Commissioner are as follows:  
(a) On 16 October 2019, Mr Sutherland committed one contravention of s 47(1) of  
the Building and Construction Industry (Improving Productivity) Act 2016 (Cth)  
(BCIIP Act) by organising an unlawful picket at 250 East Terrace Adelaide in  
South Australia (the unlawful picket).  
(b) On 16 October 2019, Mr Sneath committed one contravention of s 47(1) of the  
BCIIP Act by engaging in the unlawful picket.  
(c) On 16 October 2019, the Union committed one contravention of s 47(1) of the  
BCIIP Act by organising the unlawful picket.  
(d) On 16 October 2019, Core-Form committed one contravention of s 47(1) of the  
BCIIP Act by engaging in the unlawful picket.  
155. In the WGC Cranes Case, Katzman J at [80], observed that ss 94 and 95 of the BCIIP Act  
attribute to an association the conduct and state of mind of its officers, agents and  
members. Under those circumstances, I do not consider the form of the declarations  
sought as against the Union and Core-Form are appropriate. Accordingly there will be  
declarations in the following terms:  
(1) On 16 October 2019, Andrew Sutherland committed one contravention of s  
47(1) of the BCIIP Act by organising an unlawful picket at 250 East Terrace,  
Adelaide, South Australia.  
(2) By reason of ss 94 and 95 of the BCIIP Act, Andrew Sutherland’s conduct in  
organising an unlawful picket is taken to have been engaged in by the  
Construction, Forestry, Maritime, Mining and Energy Union (Union) so that the  
Union committed one contravention of s 47(1) of the BCIIP Act by organising an  
unlawful picket at 250 East Terrace, Adelaide, South Australia.  
(3) On 16 October 2019, Andrew James Sneath committed one contravention of s  
47(1) of the BCIIP Act by engaging in an unlawful picket at 250 East Terrace,  
Adelaide, South Australia.  
(4) By reason of s 94 of the BCIIP Act, Andrew James Sneath’s conduct in engaging  
in an unlawful picket is taken to have been engaged in by Core-Form Pty Ltd  
(Core-Form) so that Core-Form committed one contravention of s 47(1) of the  
BCIIP Act by engaging an unlawful picket at 250 East Terrace, Adelaide, South  
Australia.  
Pecuniary Penalties  
156. For the reasons I have set out above, I have imposed the following pecuniary penalties:  
The Union  
157. $189,000.  
Mr Sutherland  
158. $38,000.  
Mr Sneath  
159. $25,000.  
Core-Form  
160. $132,000.  
161. Each of these penalties is to be paid to the Commonwealth of Australia within 28 days.  
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true  
copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.  
Associate:  
Dated: 1 July 2022  
SCHEDULE OF PARTIES  


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