Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201

Section 556 of the Fair Work Act 2009 (Cth) prevented a further pecuniary penalty from being imposed upon the same particular conduct, even if that conduct was subsumed within broader conduct contravening a different section. The primary judge erroneously construed s 556 as requiring total overlap of the conduct for its operation; properly construed, s 556 applies where specific acts or omissions are penalised under more than one civil remedy provision.

Jurisdiction
Australia
Judgment Date
15 November 2019
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed in part
Legal Topics
['fair Work Act 2009 (cth)' 'civil Penalties' 'double Jeopardy' 'statutory Construction']
['industrial Law'] ['fair Work Act 2009 (cth)' 'civil Penalties' 'double Jeopardy' 'statutory Construction']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether s 556 of the Fair Work Act 2009 (Cth) prevents imposition of multiple penalties for overlapping conduct under ss 499 and 500' "How 'particular conduct' is to be understood within s 556" 'Relation of statutory and common law double jeopardy concepts']

Ratio Decidendi

Section 556 of the Fair Work Act 2009 (Cth) prevented a further pecuniary penalty from being imposed upon the same particular conduct, even if that conduct was subsumed within broader conduct contravening a different section. The primary judge erroneously construed s 556 as requiring total overlap of the conduct for its operation; properly construed, s 556 applies where specific acts or omissions are penalised under more than one civil remedy provision.

Court Disposition

Appeal allowed in part

Orders

  • ['The appeal is allowed.' 'Orders 7 and 10 of the orders made below on 6 June 2019 are set aside.' 'There be no order as to the costs of the appeal.' 'The appeal be otherwise dismissed.']