Multiplex was penalised $4,000 on 11 October 2005. The CFMEU was penalised $2,500 on 5 November 2008.
Merkel J. imposed the penalties because of the following factors:
• it was appropriate to ‘total’ or ‘aggregate’ the penalty for the ten contraventions;
• Multiplex admitted that from 1999 to 2003 it had a practice of paying employees who ceased work during safety audits conducted after a death in the industry, though it was aware, or ought to have been aware, that this was unlawful, but made undertakings to the applicant to revise its policy to prevent a recurrence of that practice;
• Multiplex knew that the employees had engaged in industrial action and that it was paying them for the period during which they were engaged in industrial action;
• the actual amount of strike pay was likely to be less than $3366.08,
• Multiplex made the admissions very early on in the proceedings; and
• Multiplex had never been found liable for breach of s 187AA or other relevant section of the WR Act before.
Merkel J. noted that the interests of parity suggested that he follow the practice of previous justices and impose penalties of $200 for each breach of s 187AA (e.g. Ponzio v BVM Builders Pty Ltd [2005] FCA 238; Pine v Austress Freyssinet (Vic) Pty Ltd (ACN 089 766 576) [2005] FCA 583, which cases arose out of the same CFMEU industrial action following the death in the industry). However, he thought that this case presented the following unique features meriting the penalty of $4000:
• Multiplex was a head contractor
• Multiplex was a large corporation with ready access to legal advice about its statutory obligations;
• Multiplex had adopted the practice of paying employees who had ceased work during safety audits;
• Multiplex either was aware, or ought to have been aware, that its practice was unlawful.
Finally, Merkel J. declared that in determining the penalty for Multiplex he had formed no view on the forthcoming contested case to be heard on the applicant’s prosecution of the second to fourteenth respondents [CFMEU officials/employees/delegates and Multiplex employees] for breaches of s 187AA.