Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 File number: VID 281 of 2015

Judge: BROMBERG J

Date of judgment: 21 June 2019

Catchwords: INDUSTRIAL LAW – admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) ("Act") which provides that a permit holder "exercising, or seeking to exercise, rights…must not…act in an improper manner" – admitted contravention of s 340(1) of the Act which provides that a person "must not take adverse action against another person…because the other person...has, or has not exercised a workplace right" – making of declarations – principles relating to imposition of pecuniary penalties –– relevance of previous contraventions by the respondents 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 – whether pecuniary penalties should be imposed on the second and third respondents personally – principles relating to personal payment orders.

Legislation: Fair Work Act 2009 (Cth) ss 340, 340(1), 341(1), 342(1), 342(2)(a), 484, 487, 489, 489(2), 500, 546(1), 556, 793

Cases cited: Australian Building Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union ("Cardigan St Case") [2018] FCA 957 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Footscray Station Case) [2017] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (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 [2015] FCA 1287 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525 Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15 Mill v The Queen (1988) 166 CLR 59 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 R v McInerney (1986) 42 SASR 111 Veen v The Queen [No 2] (1988) 164 CLR 465