Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) [2023] FCA 219

Federal Court of Australia

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) [2023] FCA 219 File number(s): QUD 238 of 2018

Judgment of: COLLIER J

Date of judgment: 16 March 2023

Catchwords: INDUSTRIAL LAW – imposition of pecuniary penalties – s 546 of the Fair Work Act 2009 (Cth) – contraventions of ss 494(1), 497 and 500 of the Fair Work Act 2009 (Cth) – principles of general and specific deterrence – where respondents' held mistaken belief regarding the right to enter the Project Side without producing entry permit – principles of course of conduct and totality – principles relating to personal payment orders – whether suspended penalties ought to be imposed – where individual respondents seek an extension of 90 days to make personal payment of pecuniary penalties

Legislation: Evidence Act 1995 (Cth) Fair Work Act 2009 (Cth) Federal Court Rules 2011 (Cth) Work Health and Safety Act 2011 (Qld)

Cases cited: Australian Building and Construction Commissioner v Construction Forestry, Maritime, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 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 (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, Mining and Energy Union (Quest Apartments Case) (No 2) (2018) 358 ALR 725; [2018] FCA 163 Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2) [2021] FCA 1149 Australian Building and Construction Commissioner v Gava [2018] FCA 1480 Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 Australian Building and Construction Commissioner v Parker [2021] FCA 704 Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 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 Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117 Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308, [2010] FCAFC 65