Australian Building and Construction Commissioner v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2020] FCA 1619

Federal Court of Australia

Australian Building and Construction Commissioner v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2020] FCA 1619 File number: NSD 478 of 2019

Judgment of: ABRAHAM J

Date of judgment: 6 November 2020

Catchwords: INDUSTRIAL LAW – Assessment of penalties – principles relating to imposition of pecuniary penalties – where parties proposed an agreed range – determination of appropriate penalty – where parties consented to declarations – declarations made – penalties ordered

Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth) s 5 Crimes Act 1914 (Cth) s 4AA Fair Work Act 2009 (Cth) ss 12, 417, 418, 494, 498, 499, 500, 539, 546, 550, 556, 557, 793 Fair Work (Registered Organisations) Act 2009 (Cth) ss 26, 27 Work Health and Safety Act 2011 (NSW) ss 4, 19 119

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 549 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330; (2015) 327 ALR 540 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Cardigan St Case) [2018] FCA 957 Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2020] FCA 451; (2020) 295 IR 197 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Others[2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; (2019) 272 FCR 290 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; (2018) 265 FCR 208 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9; (2020) 274 FCR 19 Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2020) 191 IR 445 Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177 Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; (2008) 177 IR 306 TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; (2012) 210 FCR 277 Trade Practices Commission v CSR Ltd [1991] ATPR 52-135 Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548; (2009) 182 IR 327