Australian Building and Construction Commissioner v Gava [2018] FCA 1480

Australian Building and Construction Commissioner v Gava [2018] FCA 1480

Mr Gava and the CFMMEU each committed two distinct contraventions of s 503(1) of the Fair Work Act 2009 (Cth) on 1 and 2 December 2016 by (a) giving an entry notice and (b) entering the site with the intention of giving the impression he was a permit holder authorised to do so when he was not. Separate penalties for each contravention and respondent are appropriate due to the separable nature of the acts. However, given Mr Gava's resignation, the isolated nature of the conduct, and the absence of further contraventions, a personal payment order was not appropriate.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Mark Gava; Second Respondent: Construction, Forestry, Maritime, Mining and Energy Union
Jurisdiction
Australia
Judgment Date
02 October 2018
Procedural Posture
Civil Penalty Proceeding / Penalty Decision and Orders
Outcome
Declarations made, penalties imposed, personal payment order refused
Legal Topics
Fair Work Act—misrepresentation, Union Right of Entry, Pecuniary Penalties, Personal Payment Orders
Industrial Law Employment Law Fair Work Act—misrepresentation Union Right of Entry Pecuniary Penalties Personal Payment Orders

Case Brief

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Parties

Australian Building and Construction Commissioner

Applicant

Mark Gava

First Respondent

Construction, Forestry, Maritime, Mining and Energy Union

Second Respondent

Procedural Posture

Civil Penalty Proceeding / Penalty Decision and Orders

Legal Issues

  1. 1 Whether acts constituted one or more contraventions of s 503 of the Fair Work Act 2009 (Cth)
  2. 2 Appropriate penalties for contraventions of s 503 by a union and official
  3. 3 Appropriateness of making a personal payment order under s 546

Ratio Decidendi

Mr Gava and the CFMMEU each committed two distinct contraventions of s 503(1) of the Fair Work Act 2009 (Cth) on 1 and 2 December 2016 by (a) giving an entry notice and (b) entering the site with the intention of giving the impression he was a permit holder authorised to do so when he was not. Separate penalties for each contravention and respondent are appropriate due to the separable nature of the acts. However, given Mr Gava's resignation, the isolated nature of the conduct, and the absence of further contraventions, a personal payment order was not appropriate.

Court Disposition

Declarations made, penalties imposed, personal payment order refused

Orders

  • Mark Gava to pay $3,500 penalty for the first contravention
  • Mark Gava to pay $2,500 penalty for the second contravention