Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413

FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 File number: SAD 300 of 2014

Judge: WHITE J

Date of judgment: 22 April 2016

Catchwords: INDUSTRIAL LAW – contraventions of ss 348, 499 and 500 of the Fair Work Act 2009 (Cth) – relevant considerations in determining appropriate declarations and penalties – whether multiple contraventions constituted a single course of conduct – whether within Court's power to impose one penalty for multiple conduct absent statutory authority – application of totality principle.

Legislation: Building and Construction Improvement Act 2005 (Cth) ss 38, 43 Crimes Act 1914 (Cth) ss 4AA, 4K Criminal Law (Sentencing) Act 1988 (SA) s 18A Fair Work Act 2009 (Cth) ss 346, 348, 355, 417, 483A(1), 483D(1), 487, 490, 492 499, 500, 501, 502, 503, 505, 510, 512, 513, 518, 539, 546, 557, 793 Workplace Relations Act 1996 (Cth) s 298B(2)

Cases cited: Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977; (2010) 199 IR 373 Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730; (2007) ATPR 42-140 Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 Brown v Allweather Mechanical Grouting Co Limited [1954] 2 QB 443 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2009) 269 ALR 1 Director of the Fair Work Building Industry Inspectorate v Bolton [2015] FWC 3042 Director of the Fair Work Building Industry Inspectorate v Bragdon (No 2) [2015] FCA 988 Director of the Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047 Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 Director of the Fair Work Building Industry Inspectorate v Cartledge (No 2) [2015] FCA 851 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 515 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 981 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] 1014 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 407 Director of the Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 Director of the Fair Work Building Industry Inspectorate v Construction v Stephenson [2014] FCA 1432 Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120; (2009) 189 IR 145 Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847; (2005) 224 ALR 467 Gregor v Construction, Forestry, Mining and Energy Union [2011] FCA 808 Hamberger v CFMEU [2002] FCA 585 Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317; (2006) 164 IR 375 Lend Lease Building Pty Ltd trading as Lend Lease v CFMEU and CEPU [2015] FWC 1130 Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 Plancorp Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357 Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v E, AD [2005] SASC 332; (2005) 93 SASR 20 R v McInerney (1986) 42 SASR 111 Royer v Western Australia [2009] WASCA 139 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 White v Benstead, Beattie and Construction, Forestry, Mining and Energy Union [2011] FMCA 920 White v Construction, Forestry, Mining and Energy Union [2011] FCA 192