Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2017] FCA 1166

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2017] FCA 1166 File number: NSD 1379 of 2016

Judge: COLLIER J

Date of judgment: 29 September 2017

Catchwords: INDUSTRIAL LAW – proceedings brought against regulator – admitted contravention of s 503(1) Fair Work Act 2009 (Cth) – appropriate form of declaration to reflect agreed facts – relevant considerations in determining penalty – principles of deterrence – utility in pecuniary penalty – importance of general deterrence – payment of penalty to applicant

Legislation: Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) Sch 1 Pt 1 Crimes Act 1914 (Cth) s 4AA Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth) Sch 3 Evidence Act 1995 (Cth) ss 55, 191(2) Fair Work (Building Industry) Act 2012 (Cth) ss 10, 15(1) Fair Work Act 2009 (Cth) ss 492, 503, 503(1), 539(2), 545, 546, 546(3) Fair Work Amendment Act 2013 (Cth) s 2, Sch 4 s 7 Federal Court of Australia Act 1976 (Cth) s 21 Workplace Relations Act 1996 (Cth) s 187AA, 187AD(1)

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) (No 2) [2017] FCA 368 Carr v Higgins Coatings Pty Ltd [2005] FCA 1809 Comcare v Post Logistics Australasia Pty Limited [2012] FCAFC 168 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 1364 Murrihy v Betezy.com.au Pty Ltd and Another (No 2) [2013] FCA 1146; (2013) 221 FCR 118 Pine v Casello Constructions Pty Ltd [2005] FCA 1854 Pine v Expoconti Pty Ltd [2005] FCA 1434 Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500 Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 Ponzio v Firebase Sprinkler Systems Pty Ltd [2005] FCA 733 R v Harrison (1997) 93 A Crim R 314 Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; (2016) 239 FCR 336