Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951

Appropriate penalties imposed for each admitted contravention of the Fair Work Act 2009 (Cth) ss 345, 497, 500 and 503, having regard to the need for specific and general deterrence, the seriousness of each contravention, the CFMMEU's history, application of double jeopardy and course of conduct principles, and the context in which the conduct occurred; totality and proportionality principles applied. The Court declared the contraventions, ordered the penalties, and held all amounts payable to the Commonwealth.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Maritime, Mining and Energy Union; Second Respondent: Adrian Lee McManus; Third Respondent: Alex Tadic; Fourth Respondent: Anthony Patrick Sloane; Sixth Respondent: Clarence Joseph Fellowes; Ninth Respondent: Desmond Taivairanga Savage; Tenth Respondent: Te Aranui Jock Martin Albert
Jurisdiction
Australia
Judgment Date
13 August 2021
Procedural Posture
Civil Penalty Proceeding / Penalty and Orders Following Admissions
Outcome
Pecuniary penalties ordered against all remaining respondents; declarations made of contraventions; penalties to be paid to Commonwealth within 28 days.
Legal Topics
Contraventions of Fair Work Act, Pecuniary Penalties, Union Right of Entry, Accessorial Liability, Workplace Safety, Misrepresentation of Statutory Rights
Employment Law Industrial Law Contraventions of Fair Work Act Pecuniary Penalties Union Right of Entry Accessorial Liability Workplace Safety Misrepresentation of Statutory Rights

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Maritime, Mining and Energy Union

First Respondent

Adrian Lee McManus

Second Respondent

Alex Tadic

Third Respondent

Anthony Patrick Sloane

Fourth Respondent

Clarence Joseph Fellowes

Sixth Respondent

Desmond Taivairanga Savage

Ninth Respondent

Te Aranui Jock Martin Albert

Tenth Respondent

Procedural Posture

Civil Penalty Proceeding / Penalty and Orders Following Admissions

Legal Issues

  1. 1 What is the appropriate penalty for admitted contraventions of ss 345, 497, 500 and 503 of the Fair Work Act 2009 (Cth)?
  2. 2 How should the Court approach multiple contraventions arising from related conduct?
  3. 3 What is the relevance of recklessness versus intention in penalty

Ratio Decidendi

Appropriate penalties imposed for each admitted contravention of the Fair Work Act 2009 (Cth) ss 345, 497, 500 and 503, having regard to the need for specific and general deterrence, the seriousness of each contravention, the CFMMEU's history, application of double jeopardy and course of conduct principles, and the context in which the conduct occurred; totality and proportionality principles applied. The Court declared the contraventions, ordered the penalties, and held all amounts payable to the Commonwealth.

Court Disposition

Pecuniary penalties ordered against all remaining respondents; declarations made of contraventions; penalties to be paid to Commonwealth within 28 days.

Orders

  • Mr Tadic pay $3,500 for s 345 contravention (3/4/19)
  • CFMMEU pay $35,000 for s 345 contravention (by Mr Tadic)