National Tertiary Education Industry Union v Swinburne University of Technology (No 2) [2015] FCA 1080

FEDERAL COURT OF AUSTRALIA

National Tertiary Education Industry Union v Swinburne University of Technology (No 2) [2015] FCA 1080 Citation: National Tertiary Education Industry Union v Swinburne University of Technology (No 2) [2015] FCA 1080

Parties: NATIONAL TERTIARY EDUCATION INDUSTRY UNION v SWINBURNE UNIVERSITY OF TECHNOLOGY and SWINBURNE COLLEGE PTY LTD

File number: VID 1127 of 2013

Judge: MORTIMER J

Date of judgment: 8 October 2015

Catchwords: INDUSTRIAL LAW – penalties – admitted contravention of threatening prejudicial alteration of employees' position for reasons including entitlement to benefit of industrial instrument – consideration of relevant factors including lower penalty rate during preparatory stages of contravening conduct; gravity of conduct; context of conduct as part of a broader proposed restructure; seniority of decision-makers; and previous finding of contravention

Legislation: Crimes Act 1914 (Cth) s 4AA Evidence Act 1995 (Cth) s 191 Fair Work Act 2009 (Cth) ss 12, 340(1)(a), 342(1), 342(2)(a), 539, 546, Pts 2-8, 3-1 Tertiary Education Quality and Standards Agency Act 2011 (Cth)

Cases cited: AB v The Queen [1999] HCA 46; 198 CLR 111 Attorney-General v Tichy (1982) 30 SASR 84 Australian Federation of Air Pilots v HNZ Australia Pty Ltd [2015] FCA 755 Australian Nursing Federation v Alcheringa Hostel Inc [2004] FCA 375; 136 FCR 530 Automotive, Food, Metals, Engineering, Printing & Kindred Industries v DMG Industries Pty Ltd [2000] FCA 1492; 102 IR 175 Community and Public Sector Union v Telstra Corporation Limited [2000] FCA 872; 101 FCR 45 Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364; 108 IR 228 Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited (No 2) [2013] FCA 362 Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445, 302 ALR 1 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 407 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59; 229 FCR 331 Fair Work Ombudsman v A Dalley Holdings Pty Ltd [2013] FCA 509 Gietzelt v Craig-Williams Pty Ltd (No 2) (1959) 1 FLR 465 Murrihy v Betezy.com.au Pty Ltd (No 2) [2013] FCA 1146; 221 FCR 118 National Tertiary Education Industry Union v Swinburne University of Technology [2013] FCA 1128 National Tertiary Education Industry Union v Swinburne University of Technology [2014] FCA 606 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; 234 IR 139 Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319