Australian Building and Construction Commissioner v Gava [2018] FCA 1480

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Gava [2018] FCA 1480 File number: SAD 316 of 2017

Judge: WHITE J

Date of judgment: 2 October 2018

Catchwords: INDUSTRIAL LAW – contraventions of s 503 of the Fair Work Act 2009 (Cth) (the FW Act) – First Respondent causing entry notice to be sent with the intention of giving the impression that he was a permit holder authorised to send an entry notice and authorised to enter the site – First Respondent's subsequent entry to site with the intention of giving the impression that he was a permit holder authorised to enter the site – whether two acts were part of the same action and constituted a single contravention – two actions held to be separate and distinct contraventions – appropriate pecuniary penalties for contraventions by union and union official. INDUSTRIAL LAW – personal payment order under s 546 of the FW Act – whether appropriate to make a personal payment order – union official is no longer employed by the union and conduct isolated – personal payment order not appropriate in the circumstances.

Legislation: Fair Work Act 2009 (Cth) ss 12, 348, 484, 487, 490, 492, 500-504, 512, 513, 518, 539, 546, 550, 557, 793 Workplace Relations Act 1996 (Cth) ss 768 Fair Work Regulations 2009 (Cth) reg 3.27 Fair Work Bill 2008 (Cth)

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Parliament Square Case) (No 2) [2018] FCA 1201 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 351 ALR 190 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 (Quest Apartments Case) (No 2) [2018] FCA 163 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Agreed Penalties Case) [2017] FCAFC 113; (2017) 254 FCR 68 Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 Australian Building and Construction Commissioner v Ingham (No 2) (the Enoggera Barracks Case) [2018] FCA 263 Australian Building and Construction Commissioner v McDermott (No 3) [2018] FCA 1105 Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2015] FCA 399 Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited (No 2) [2018] FCA 1286 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 357 ALR 55 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union – Construction and General Division, SA Divisional Branch [2017] FWC 1227 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Lend Lease Sites Case) [2016] FCA 413 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15