Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897

Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897

A single penalty should be imposed on each respondent for their overlapping contraventions of ss 346(a), 348, and 500, because the contraventions arose from the same particular conduct. Penalties are assessed with reference to the seriousness of the conduct, general and specific deterrence, lack of contrition or corrective action, and the history of prior contraventions, with s 348 (intent to coerce) being treated as the lead or primary contravention for penalty purposes.

Jurisdiction
Australia
Judgment Date
14 June 2018
Procedural Posture
Imposition of Civil Pecuniary Penalties Under the Fair Work Act 2009 (cth) / Penalty/relief Judgment Following Liability Findings
Outcome
Pecuniary penalties imposed; single penalty per respondent for s 348 contravention, reflecting all contraventions. Penalties to be paid to Commonwealth.
Legal Topics
['civil Penalties' 'adverse Action' 'coercion' 'union Officials’ Conduct' 'right of Entry' 'general and Specific Deterrence' 'application of S 556 Fair Work Act' 'penalty Assessment']
['industrial Law' 'employment Law'] ['civil Penalties' 'adverse Action' 'coercion' 'union Officials’ Conduct' 'right of Entry' 'general and Specific Deterrence' 'application of S 556 Fair Work Act' 'penalty Assessment']

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Procedural Posture

Imposition of Civil Pecuniary Penalties Under the Fair Work Act 2009 (cth) / Penalty/relief Judgment Following Liability Findings

Legal Issues

  1. 1 ['Appropriate penalties for contraventions of ss 346(a), 348, and 500 of Fair Work Act 2009 (Cth)' 'Application of s 556 as to whether multiple penalties may be imposed for same conduct' 'Assessment of penalty having regard to deterrence, prior history, seriousness, and other relevant factors']

Ratio Decidendi

A single penalty should be imposed on each respondent for their overlapping contraventions of ss 346(a), 348, and 500, because the contraventions arose from the same particular conduct. Penalties are assessed with reference to the seriousness of the conduct, general and specific deterrence, lack of contrition or corrective action, and the history of prior contraventions, with s 348 (intent to coerce) being treated as the lead or primary contravention for penalty purposes.

Court Disposition

Pecuniary penalties imposed; single penalty per respondent for s 348 contravention, reflecting all contraventions. Penalties to be paid to Commonwealth.

Orders

  • ['Pecuniary penalty of $8,100 imposed on first respondent for contravening s 348 of the Fair Work Act 2009 (Cth).' 'Pecuniary penalty of $43,200 imposed on second respondent for contravening s 348 of the Fair Work Act 2009 (Cth).' 'Penalties to be paid to the Commonwealth.']