Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202 File number: VID 955 of 2015

Judge: ANASTASSIOU J

Date of judgment: 27 February 2020

Catchwords: INDUSTRIAL LAW – pecuniary penalties – contravention of s 500 of the Fair Work Act 2009 (Cth) (FW Act) – Union conceded liability under ss 550 and 793 of the FW Act – determination of appropriate penalty – analysis of the nature, gravity, character and seriousness of the contraventions – whether history of contravening conduct should inform the court's assessment of an appropriate penalty in the instant case – application of "course of conduct" and "totality" principles

Legislation: Fair Work Act 2009 (Cth) ss 500, 546(1), 550, and 793 Occupational Health and Safety Act 2004 (Vic)

Cases cited: Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 363 ALR 246 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Building and Construction Commission v Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Cardigan Street Case) [2018] FCA 957 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15; 258 FCR 158 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, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Securities and Investments Commission v Southcorp Ltd (No 2) [2003] FCA 1369; 130 FCR 406 BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234 Cahill v CFMEU [2008] FCA 495 Commonwealth of Australia v Director of the Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482; 90 ALJR 113; 326 ALR 476; (2015) 67 AILR 102–494; 255 IR 87 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (the Broadway On Ann Case) [2018] FCAFC 126; 265 FCR 208 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (the Non-Indemnification Personal Payment Case) [2018] FCAFC 97; 264 FCR 155 Cozadinos v CFMEU [2011] FMCA 284 Markarian v The Queen (2005) 228 CLR 357 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 SZEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40‑091 Veen v The Queen (No 2) (1988) 164 CLR 465 White v CFMEU [2011] FCA 192 Wong v The Queen (2001) 207 CLR 584