Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468

The appropriate penalty must be proportionate to the objective seriousness of the CFMMEU's admitted contravention of s 500 Fair Work Act, as the conduct was low-grade with no evidence of deliberateness or premeditation, and while the union's recidivism is relevant, it cannot justify a disproportionate penalty. A penalty of $23,000 adequately reflects the gravity of the conduct, accounts for past contraventions to the extent permissible, and incorporates a discount for cooperation.

Jurisdiction
Australia
Judgment Date
24 November 2021
Procedural Posture
Civil Penalty Proceeding / Penalty Determination After Admission of Contravention
Outcome
declared contravention; penalty imposed
Legal Topics
['civil Penalties' 'right of Entry' "union Officials' Conduct" 'proportionality in Penalty Assessment' 'accessory Liability' 'deterrence']
['industrial Law' 'employment Law'] ['civil Penalties' 'right of Entry' "union Officials' Conduct" 'proportionality in Penalty Assessment' 'accessory Liability' 'deterrence']

Case Brief

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Procedural Posture

Civil Penalty Proceeding / Penalty Determination After Admission of Contravention

Legal Issues

  1. 1 ["What is the appropriate penalty for a contravention of s 500 of the Fair Work Act 2009 (Cth) by the CFMMEU via its officials' conduct?" "To what extent does CFMMEU's history of prior contraventions affect penalty for this 'low range' admitted contravention?" 'How should proportionality and deterrence guide penalty assessment in light of past contraventions?']

Ratio Decidendi

The appropriate penalty must be proportionate to the objective seriousness of the CFMMEU's admitted contravention of s 500 Fair Work Act, as the conduct was low-grade with no evidence of deliberateness or premeditation, and while the union's recidivism is relevant, it cannot justify a disproportionate penalty. A penalty of $23,000 adequately reflects the gravity of the conduct, accounts for past contraventions to the extent permissible, and incorporates a discount for cooperation.

Court Disposition

declared contravention; penalty imposed

Orders

  • ['The CFMMEU pay a pecuniary penalty of $23,000 in respect of the declared contravention.' 'The pecuniary penalty be paid to the Commonwealth of Australia within 28 days.' 'There be no order as to costs.']