Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd (No 3) [2021] FCA 282

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd (No 3) [2021] FCA 282 File number: QUD 776 of 2016

Judge: COLLIER J

Date of judgment: 26 March 2021

Catchwords: INDUSTRIAL LAW – penalty hearing – court determination of pecuniary penalties to be imposed – where employer contravened civil remedy provisions of Fair Work Act 2009 (Cth) – where employer breached term of enterprise agreement in contravention of s 50 of Fair Work Act – whether mandated overtime in new employee roster was "reasonable" – attendance at work not an indicator of assent to new roster – nature and extent of the contravening conduct – whether contravening conduct was serious – the need for deterrence in respect of compliance with enterprise agreements – consequence of "taking the odds" to a contravention – quantum of penalties to be imposed.

Legislation: Fair Work Act 2009 (Cth) ss 50, 417, 545(1), 545(2), 546, 557 Trade Practices Act 1974 (Cth)

Cases cited: Australian & International Pilots Association v Qantas Airways Limited [2009] FCA 500 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 Australian Building and Construction Commissioner v McCullough (No 2) [2017] FCA 295 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2] ATPR 42-402; [2012] FCA 629 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union and Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd (2007) 168 IR 368; [2007] FCA 1607 Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services [2019] FCA 2145 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 Construction, Forestry, Mining and Energy Union v Hay Point Services [2018] FCA 417 Director of the Fair Work Building Industry Inspectorate v Ellen (The Longford Gas Plant Case) [2016] FCA 1395 PIA Mortgage Services Pty Ltd v King (2020) 292 IR 317; [2020] FCAFC 15 Re Working Hours Case (2002) 114 IR 390 Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336; [2016] FCAFC 4 Universal Music Australia Pty Ltd v Australian Competition & Consumer Commission (2003) 131 FCR 529, [2003] FCAFC 193