Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436

FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 File number: VID 282 of 2014

Judge: MORTIMER J

Date of judgment: 13 May 2016

Catchwords: INDUSTRIAL LAW – action taken or threatened with intent to coerce a person to engage in industrial activity – request for placement of union delegate on construction site – request refused – blockade of work site – threats to repeat blockade – principles relevant to penalty – proportionality of penalty to contravening conduct – relevance of contravener's individual circumstances to proportionality – purpose of penalties – whether a single course or multiple courses of conduct – seriousness of conduct – relevance of admissions – history of contraventions – general deterrence – specific deterrence – absence of contrition – principle of totality – power to order that penalty be paid by individual without reimbursement – power to restrain union from indemnifying union official against penalty – discretionary considerations – contravener's disregard of law – contravener's record of similar contraventions – difficulty of supervision – statutory conversion of penalty to debt – payment of penalties by union

Legislation: Fair Work Act 2009 (Cth) ss 347(b), 347(b)(iv), 348, 363(1)(b), 363(3), 539, 545, 545(1), 545(2), 546, 546(1), 546(2), 546(4), 546(5), 553 Fair Work (Registered Organisations) Act 2009 (Cth) Crimes Act 1914 (Cth) s 4AA Competition and Consumer Act 2010 (Cth) s 77A Corporations Act 2001 (Cth) ss 199A(2)(b), 1317G(2) Federal Court of Australia Act 1976 (Cth) ss 23, 31