Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner [2020] FCAFC 232

Federal Court of Australia

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner [2020] FCAFC 232 Appeal from: Registered Organisations Commissioner v Communications, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2020] FCA 96

File number: NSD 338 of 2020

Judgment of: BROMBERG, RANGIAH AND BROMWICH JJ

Date of judgment: 22 December 2020

Catchwords: INDUSTRIAL LAW – appeal against quantum of pecuniary penalties for contraventions of ss 230(1)(b) and (c) and 233(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) – whether primary judge erred in not ascribing a particular penalty to each contravention – whether primary judge misunderstood totality principle – whether primary judge erred in concluding that specific deterrence was relevant – whether primary judge erred in concluding certain contraventions were not part of single course of conduct – whether penalties manifestly excessive – where primary judge erred in assessing a single penalty for multiple contraventions – consideration of appropriate penalty in circumstances

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) s 49 Fair Work (Registered Organisations) Act 2009 (Cth) ss 230, 233, 305 and 306 Fair Work Act 2009 (Cth) s 546

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 CMB v Attorney-General (NSW) (2015) 256 CLR 346 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; [2010] FCAFC 39 Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 Parker v Australian Building and Construction Commissioner (2019) 270 FCR 39 Pattinson v Australian Building and Construction Commissioner (2020) 384 ALR 75; [2020] FCAFC 177 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 R v Ellis (1986) 6 NSWLR 603 Registered Organisations Commissioner v Australian Nursing and Midwifery Federation (No 2) [2018] FCA 2004 Ryan v The Queen (2001) 206 CLR 267 Transport Workers' Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40