Fair Work Ombudsman v Australian Workers' Union [2020] FCA 60

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Australian Workers' Union [2020] FCA 60 File number: VID 266 of 2016

Judge: SNADEN J

Date of judgment: 7 February 2020

Catchwords: INDUSTRIAL LAW – adverse action – pecuniary penalties – agreed contraventions – charges laid by employee organisation against members for failing to engage in industrial action – failure to withdraw charges for prolonged period – where penalty unit increased during the course of contravening conduct – civil double jeopardy – application of "course of conduct" and "totality" principles – appropriateness of declaratory relief – no declaratory relief

Legislation: Crimes Act 1914 (Cth) s 4AA Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth) Sch 1 Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work Act 2009 (Cth) Pts 2-4, 3-1, ss 12, 336, 340, 341, 342, 346, 347, 363, 408, 539, 545, 546, 556, 557, 570, 793

Cases cited: A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540 Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99 Markarian v The Queen (2005) 228 CLR 357 Registered Organisations Commissioner v Australian Nursing and Midwifery Federation (No 2) [2018] FCA 2004 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 Transport Workers' Union of Australia v Registered Organisations Commissioner (No 2) (2018) 363 ALR 464 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 Warramunda Village v Pryde (2001) 105 FCR 437 Wong v The Queen (2001) 207 CLR 584