Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120

FEDERAL COURT OF AUSTRALIA

Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120

INDUSTRIAL LAW – Penalties – Errors of principle when imposing penalties – Parity of penalties – Whether a single course of conduct which breaches multiple legislative provisions should be subject to multiple penalties –- Relevance of prior contravening conduct when imposing penalties Building and Construction Industry Improvement Act 2005 (Cth), ss 4, 38, 43, 45, 57, 69 Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth), s 27 Workplace Relations Act 1996 (Cth), ss 4, 84, 298B, 298K, 298L, 298P Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560, applied Bovis Lend Lease Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 650, cited Council of the City of Greater Wollongong v Cowan (1955)93CLR 435, followed Draffin v Construction, Forestry, Mining and Energy Union [2007] FCA 2011, referred to Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243 House v The King (1936) 55 CLR 499, referred to Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383, referred to NW Frozen Foods Pty Limited v Australian Competition and Consumer Commission (1996) 71 FCR 285, applied Orr v Holmes (1948)76 CLR 632, followed Ponzio v B & P Caelli Constructions Pty Ltd and Others [2007] FCAFC 65, cited R v McInerney (1986) 42 SASR 111, referred to Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others (2001) 109 FCR 378, cited Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61; [2008] FCA 1426, cited JOHN WILLIAM DRAFFIN v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, STEVE ALLEN, GERARD BENSTEAD and BILL OLIVER