Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining & Energy Union [2014] FCA 126

FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining & Energy Union [2014] FCA 126 Citation: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining & Energy Union [2014] FCA 126

Parties: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and JOSEPH MCDONALD

File number: WAD 251 of 2012

Judge: GILMOUR J

Date of judgment: 24 February 2014

Catchwords: INDUSTRIAL LAW – admitted contraventions of s 348 of the Fair Work Act 2009 (Cth) – statement of agreed facts – appropriate penalties to be imposed – agreement between the applicant and respondents on penalty – relevant considerations in the assessment of penalty – totality principle – course of conduct – prior relevant conduct – deliberate contravention - involvement of senior management – contrition, corrective action and cooperation – specific deterrence – general deterrence

Legislation: Fair Work Act 2009 (Cth) ss 12, 348, 363(1)(b), 546(3)(a) Fair Work (Building Industry) Act 2012 (Cth) ss 4, 16 Fair Work (Registered Organisation) Act 2009 (Cth) s 27 Crimes Act 1914 (Cth) s 4AA(1)

Cases cited: Attorney-General v Tichy (1982) 30 SASR 84 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) (2010) 199 IR 373 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Construction, Forestry, Mining and Energy Union v Hamberger (2003) 127 FCR 309 Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145 Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 Hamberger v Construction Forestry Mining & Energy Union [2002] FCA 585 Johnson v The Queen (2004) 205 ALR 346 McDonald v The Queen (1994) 48 FCR 555 Mill v The Queen (1988) 166 CLR 59 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR ¶41-993 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Pearce v The Queen (1998) 194 CLR 610 Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 Temple v Powell (2008) 169 FCR 169 Wong v The Queen (2001) 207 CLR 584