Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235

The respondents, by preventing two employees from working unless they were financial members of the union or paid required fees, contravened sections 346 and 348 of the Fair Work Act 2009 (Cth). Pecuniary penalties are warranted for the contraventions, moderated to reflect the overall culpability, deterrence, prior conduct, and mitigating factors.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Andrew Harisiou
Jurisdiction
Australia
Judgment Date
23 October 2017
Procedural Posture
Civil Penalty Proceeding / Judgment and Orders on Agreed Facts and Penalty
Outcome
Declarations made and pecuniary penalties imposed for contraventions of the Fair Work Act 2009 (Cth) sections 346 and 348, with orders as specified.
Legal Topics
Adverse Action, Coercion, Freedom of Association, Civil Penalties, Trade Union Conduct
Industrial Law Adverse Action Coercion Freedom of Association Civil Penalties Trade Union Conduct

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Andrew Harisiou

Second Respondent

Procedural Posture

Civil Penalty Proceeding / Judgment and Orders on Agreed Facts and Penalty

Legal Issues

  1. 1 Whether the respondents contravened sections 346 and 348 of the Fair Work Act 2009 (Cth)
  2. 2 Appropriate penalty for contravention of the Fair Work Act 2009 (Cth)

Ratio Decidendi

The respondents, by preventing two employees from working unless they were financial members of the union or paid required fees, contravened sections 346 and 348 of the Fair Work Act 2009 (Cth). Pecuniary penalties are warranted for the contraventions, moderated to reflect the overall culpability, deterrence, prior conduct, and mitigating factors.

Court Disposition

Declarations made and pecuniary penalties imposed for contraventions of the Fair Work Act 2009 (Cth) sections 346 and 348, with orders as specified.

Orders

  • The second respondent pay a pecuniary penalty of $4,000 for each of two contraventions of section 348 of the Fair Work Act 2009 (Cth).
  • The first respondent pay a pecuniary penalty of $45,000 for each of two contraventions of section 348 of the Fair Work Act 2009 (Cth).