Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201 Appeal from: Australian Building and Construction Commissioner v Hassett [2019] FCA 855
File number: TAD 26 of 2019
Judges: BROMBERG, WHEELAHAN AND SNADEN JJ
Date of judgment: 15 November 2019
Catchwords: INDUSTRIAL LAW – s 556 of the Fair Work Act 2009 (Cth) ("FW Act") – civil double jeopardy – penalties imposed under ss 499 and 500 – conduct constituting one contravention wholly subsumed within the conduct constituting the other – whether s 556 is only engaged where there is a complete overlap between the conduct (physical acts and omissions) which constitutes each relevant contravention – whether "conduct" in s 556 should be understood as not merely a reference to physical acts and omissions but also to elements of character or circumstance relevant to a given contravention – common law principles of double jeopardy discussed – whether, as a matter of fact, the penalties imposed in respect of the s 500 contravention were not in any way referable to the conduct constituting the contraventions of s 499 – appeal allowed
Legislation: Fair Work Act 2009 (Cth): ss 499, 500, 556
Cases cited: 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 (No 2) [2018] FCA 1211 Baini v The Queen (2012) 246 CLR 469 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Lacey v Attorney-General of Queensland (2011) 242 CLR 573 Lecornu v The Queen (2012) 36 VR 382 Mitchell v Latrobe Regional Hospital (2016) 51 VR 581 Ogden Industries Pty Ltd v Lucas [1970] AC 113 Pearce v The Queen (1998) 194 CLR 610
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