Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 File number: QUD 389 of 2016

Judge: REEVES J

Date of judgment: 27 October 2017

Catchwords: INDUSTRIAL LAW – contraventions of ss 343 and 348 of the Fair Work Act 2009 (Cth) – seriousness of contraventions - number of contraventions – where respondents were each found to have directly contravened ss 343 and 348 of the Fair Work Act 2009 (Cth) – whether a corporate body can be both directly and vicariously liable for the same conduct – effect of presumption in s 361 Fair Work Act 2009 (Cth) where respondents did not give evidence – where Commissioner relied on conduct of a non-party to fix liability to body corporate under s 793 Fair Work Act 2009 (Cth) – quantum of penalties – relevant considerations in determining appropriate penalty – declarations made and penalties determined

Legislation: Acts Interpretation Act 1901 (Cth) Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth)

Cases cited: Ann Street Mezzanine Pty Ltd v KPMG [2011] FCA 453 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 10 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Webb Dock case) [2017] FCA 62 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 Australian Building and Construction Commissioner v Harris [2017] FCA 733 Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 The Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd (No 2) [2017] FCA 1237 Director of 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 353 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338; [2016] FCA 525 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 1225 Fair Work Ombudsman v Australian Workers' Union [2017] FCA 528 Hamilton v Whitehead (1988) 166 CLR 121 Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530; [2000] FCA 1188 The Queen v McInerney (1986) 42 SASR 111 Trade Practices Commission v CSR Limited (1991) ATPR ¶41-076 Veen v The Queen (1988) 164 CLR 465