Federal Court of Australia
Federal Court of Australia
Australian Building and Construction Commissioner v Australian Workers' Union [2022] FCAFC 143 Appeal from: Australian Building and Construction Commissioner v Australian Workers' Union [2021] FCA 861
File number: VID 489 of 2021
Judgment of: MOSHINSKY, O'CALLAGHAN AND SNADEN JJ
Date of judgment: 29 August 2022
Catchwords: INDUSTRIAL LAW – civil penalties – admitted contraventions of s 475(2) of the Fair Work Act 2009 (Cth) – admitted contraventions of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – where primary judge imposed penalties by reference to certain principles stated by the Full Court of the Federal Court – where the judgment of the Full Federal Court was overturned by the High Court of Australia after the primary judge gave judgment in the present matter – where the respondent conceded that, in light of the judgment of the High Court, the primary judge erred – where both parties submitted that the Full Court in this matter should re-exercise the discretion to impose penalties
Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss 5, 6, 46, 49, 81, 94 Fair Work Act 2009 (Cth), ss 12, 19, 417, 418, 474, 475, 539, 570, 793
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 Australian Building and Construction Commissioner v Menon [2020] FCA 1418 Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599 Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172 BlueScope Steel Ltd v Australian Workers' Union [2018] FCA 1574 BlueScope Steel Ltd v Australian Workers' Union [2019] FCA 182 Boensch v Pascoe (2019) 268 CLR 593 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd (2007) 168 IR 368 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7 Dinsdale v The Queen (2000) 202 CLR 321 Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (2018) 280 IR 173 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076
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