Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (The Mordialloc Freeway Project Case) [2024] FCA 655

Federal Court of Australia

Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (The Mordialloc Freeway Project Case) [2024] FCA 655 File number: VID 669 of 2021

Judgment of: SNADEN J

Date of judgment: 21 June 2024

Catchwords: INDUSTRIAL LAW – right of entry – permit holders exercising rights contravened ss 499 and 500 of the Fair Work Act 2009 (Cth) – agreed contraventions – determination of appropriate penalties – analysis of the nature, gravity, character and seriousness of the contravening conduct – significance of respondents' states of mind – significance of contrition and corrective action – primacy of deterrence in setting penalties – application of "totality" and "course of conduct" principles – penalties imposed – appropriateness of declaratory relief

Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth) s 46 Fair Work Act 2009 (Cth) ss 499, 500, 539, 545, 546, 550, 793 Occupational Health and Safety Act 2004 (Vic) ss 87, 89, 90

Cases cited: Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Another (Castlemaine Police Station Case) (2018) 258 FCR 158 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) [2021] FCA 1414 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, Energy Union (The U-Vet School Case) [2022] FCA 1068 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Werribee Shopping Centre Case) [2017] FCA 1235 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) [2018] FCA 163 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Titan Cranes Case) [2022] FCA 774 Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393 Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 Civil Air Operations Officers' Association of Australia v Airservices Australia (No 2) [2022] FCA 1077 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 281 FCR 365 Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) (2023) 299 FCR 334 Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1173 Director of the Fair Work Building Industry Inspectorate v Bragdon (2015) 147 ALD 373 Fair Work Ombudsman (formerly Australian Building and Construction Commissioner) v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) (No 2) [2023] FCA 13 Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union [2024] FedCFamC2G 235 Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (North East Link Project Case) [2024] FedCFamC2G 396 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FedCFamC2G 1060 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Hutchison Ports Appeal) [2019] FCAFC 69 Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934 Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781 Royer v Western Australia (2009) 197 A Crim R 319 Temple v Powell (2008) 169 FCR 169