Australian Building and Construction Commissioner v O'Connor (No 4) [2018] FCA 1293

Australian Building and Construction Commissioner v O'Connor (No 4) [2018] FCA 1293

Separate penalties should be imposed for each of the second and third respondents' contraventions of section 355 of the Fair Work Act 2009, as the relevant conduct comprised two distinct acts of coercion with dual aspects: one regarding the employment of Mr Clark and one regarding the termination of Mr Hylands' employment. The statutory framework does not allow them to be treated as a single contravention for penalty, nor does the course of conduct principle apply in these circumstances. Declarations should be made in respect of each contravention as proposed by the applicant.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Jim O'Connor; Second Respondent: Jack Merkx; Third Respondent: Construction, Forestry, Mining and Energy Union
Jurisdiction
Australia
Judgment Date
27 August 2018
Procedural Posture
Civil Penalty Proceedings / Penalty and Final Orders
Outcome
Declarations made as sought by the applicant; pecuniary penalties imposed on second and third respondents; penalties to be paid to the Commonwealth of Australia.
Legal Topics
Coercion, Pecuniary Penalties, Industrial Action, Union Conduct, Civil Remedy Provisions, Declarations, Fair Work Act 2009
Industrial Law Employment Law Coercion Pecuniary Penalties Industrial Action Union Conduct Civil Remedy Provisions Declarations +1 more

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Parties

Australian Building and Construction Commissioner

Applicant

Jim O'Connor

First Respondent

Jack Merkx

Second Respondent

Construction, Forestry, Mining and Energy Union

Third Respondent

Procedural Posture

Civil Penalty Proceedings / Penalty and Final Orders

Legal Issues

  1. 1 What declarations should be made regarding the respondents' contraventions of the Fair Work Act 2009?
  2. 2 What are the appropriate pecuniary penalties for the second and third respondents in respect of contraventions of section 355 of the Fair Work Act 2009?

Ratio Decidendi

Separate penalties should be imposed for each of the second and third respondents' contraventions of section 355 of the Fair Work Act 2009, as the relevant conduct comprised two distinct acts of coercion with dual aspects: one regarding the employment of Mr Clark and one regarding the termination of Mr Hylands' employment. The statutory framework does not allow them to be treated as a single contravention for penalty, nor does the course of conduct principle apply in these circumstances. Declarations should be made in respect of each contravention as proposed by the applicant.

Court Disposition

Declarations made as sought by the applicant; pecuniary penalties imposed on second and third respondents; penalties to be paid to the Commonwealth of Australia.

Orders

  • Second respondent (Jack Merkx) to pay a penalty of $5,100 for contravention of s 355 as per Declaration 6.
  • Second respondent (Jack Merkx) to pay a penalty of $5,100 for contravention of s 355 as per Declaration 7.