Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 File number: VID 704 of 2014
Judge: BROMBERG J
Date of judgment: 21 June 2019
Catchwords: INDUSTRIAL LAW – admitted contraventions of s 494(1) of the Fair Work Act 2009 (Cth) – an official of an organisation exercised a "State … OHS right without being a permit holder - making of declarations – principles relating to imposition of pecuniary penalties – whether no penalty should be made where a person contravenes a civil penalty provision on a genuine but mistaken view of the law – relevance of previous contraventions by the respondent of industrial legislation to the penalty to be imposed – proportionality of penalty to contravening conduct – general deterrence – specific deterrence– whether a single course or multiple courses of conduct – principle of totality.
Legislation: Fair Work Act 2009 (Cth) ss 494(1), 494(2), 546(1) and 557(1) Occupational Health and Safety Act 2004 (Vic) ss 58, 58(1)(f) and 70
Cases cited: Australasian Meat Industry Employees' Union v Australia Meat Holdings [1998] FCA 664 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union ("Cardigan St Case") [2018] FCA 957 Australian Competition and Consumer Commission v Oobi Baby Pty Ltd [2008] FCA 1488 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 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 Broadway on Ann Case) [2018] FCAFC 126 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 Mill v The Queen (1988) 166 CLR 59 Ostrowski v Palmer (2004) 218 CLR 493 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 SMEC Holdings Pty Ltd v Commissioner of the Australian Federal Police [2018] FCA 609 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529 Veen v The Queen (No 2) (1988) 164 CLR 465
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