Construction, Forestry, Mining and Energy Union v State of Victoria (No 2) [2013] FCA 1034

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v State of Victoria (No 2) [2013] FCA 1034 Citation: Construction, Forestry, Mining and Energy Union v State of Victoria (No 2) [2013] FCA 1034

Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v STATE OF VICTORIA CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v MCCORKELL CONSTRUCTIONS PTY LTD (ACN 094 764 584) and STATE OF VICTORIA

File number(s): VID 1097 of 2012 VID 10 of 2013

Judge: BROMBERG J

Date of judgment: 11 October 2013

Catchwords: INDUSTRIAL LAW – contraventions of ss 340 and 343 of Fair Work Act 2009 (Cth) – adverse action – coercion – civil pecuniary penalties – whether a pecuniary penalty may be imposed on a respondent where the applicant does not press its claim for a penalty – whether the Crown is amenable to the imposition of a pecuniary penalty for a breach of a civil remedy provision – discussion of presumption in Cain v Doyle that absent a clear indication to the contrary, Parliament did not intend that a sanction of a criminal nature should be imposed on the Crown by an enactment – whether presumption in Cain v Doyle has application to an enactment providing for civil pecuniary penalties – purposes underlying the imposition of pecuniary penalties under the Fair Work Act –considerations relevant to the imposition of a pecuniary penalty under the Fair Work Act – whether the State of Victoria is a "body corporate" within the meaning of s 546(2) of the Fair Work Act – whether it is necessary to impose a penalty on the Crown – extent of penalty to be imposed – whether and the extent to which a prior or contemporaneous contravention not recorded at the time that the contravening conduct at issue occurred may be taken into account – whether pecuniary penalties imposed ought be paid to the applicant – stay of orders pending appeal.