Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FCA 36

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FCA 36 File number(s): QUD 194 of 2020

Judgment of: COLLIER J

Date of judgment: 30 January 2023

Catchwords: INDUSTRIAL LAW – imposition of pecuniary penalties - whereas the respondents admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) – whereas the applicant seeks the Court make declarations as to contraventions and impose personal payment orders on individual respondents – determination of appropriate pecuniary penalty - relevance of previous contraventions by the respondents of industrial legislation – proportionality of penalty to contravening conduct – general deterrence – specific deterrence – principle of totality – principles relating to personal payment orders

Legislation: Fair Work Act 2009 (Cth) Work Health and Safety Act 2011 (Qld)

Cases cited: Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Bruce Highway Caloundra to Sunshine Upgrade Case) [2018] FCA 553 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Maritime and Energy Union (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Toowoomba Bypass Case) [2021] FCA 1128 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 Australian Building and Construction Commissioner v Pattinson & Anor [2022] HCA 13 Australian Building and Construction Commissioner v Powell [2017] FCAFC 89 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Brookfield Multiplex Engineering and Infrastructure v McDonald [2014] FCA 389 Commonwealth v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Botany Cranes Case) (No 4) [2021] FCA 525 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (the Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076