Fair Work Ombudsman v National Union of Workers [2019] FCA 1826

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v National Union of Workers [2019] FCA 1826 File number: VID 675 of 2016

Judge: KERR J

Date of judgment: 30 October 2019

Date of publication of reasons: 7 November 2019

Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 417 – number of contraventions – meaning of "organise" – single period of industrial action – two contraventions found INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 557 – course of conduct – whether two contraventions of s 417 arose out of the same course of conduct by the Respondent – no relevant course of conduct INDUSTRIAL LAW – Fair Work Act 2009 (Cth) ss 417, 421, 556 – civil double jeopardy – contravention of both s 417 and s 421 – consideration of Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the Australian Paper Case) (No 2) [2017] FCA 367 and Australian Building and Construction Commissioner v Upton (the Gorgon Projects Case) (No 2) [2018] FCA 897 – judicial comity – Court not satisfied that relevant reasoning plainly wrong – Respondent only liable to pay a pecuniary penalty for contravention of first provision – contravention of second provision taken into account as aggravating factor in determining quantum of pecuniary penalty INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 355(b) admission of contravention – whether intent to coerce company not to engage "a particular independent contractor" – no basis for inferring such intent – no contravention INDUSTRIAL LAW – Fair Work Act 2009 (Cth) ss 417, 421 – penalties – general deterrence