Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498

Given the seriousness and deliberate nature of Mr Murphy's conduct, though not egregious, and his prior contraventions, a penalty in the lower mid-range is appropriate. For the CFMMEU, the penalty must reflect objective seriousness, not history, with slightly greater weight given to deterrence, resulting in a mid-range penalty. Prior contraventions inform need for deterrence but do not justify maximum penalty unless conduct itself merits it.

Jurisdiction
Australia
Judgment Date
13 September 2019
Procedural Posture
Civil Penalty Proceeding / Penalty Determination and Orders
Outcome
Pecuniary penalties imposed on both respondents for contravention of s 500 Fair Work Act 2009 (Cth).
Legal Topics
['pecuniary Penalties' 'contravention of S 500 Fair Work Act' 'deterrence' 'union Liability' 'penalty Assessment']
['industrial Law' 'employment Law'] ['pecuniary Penalties' 'contravention of S 500 Fair Work Act' 'deterrence' 'union Liability' 'penalty Assessment']

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Procedural Posture

Civil Penalty Proceeding / Penalty Determination and Orders

Legal Issues

  1. 1 ['Appropriate penalty for contravention of s 500 of Fair Work Act 2009 (Cth) by permit holder and union' 'Relevance of prior contraventions to penalty assessment' 'Proper characterisation of contravening conduct' 'Weight to be given to deterrence']

Ratio Decidendi

Given the seriousness and deliberate nature of Mr Murphy's conduct, though not egregious, and his prior contraventions, a penalty in the lower mid-range is appropriate. For the CFMMEU, the penalty must reflect objective seriousness, not history, with slightly greater weight given to deterrence, resulting in a mid-range penalty. Prior contraventions inform need for deterrence but do not justify maximum penalty unless conduct itself merits it.

Court Disposition

Pecuniary penalties imposed on both respondents for contravention of s 500 Fair Work Act 2009 (Cth).

Orders

  • ['The Construction, Forestry, Maritime, Mining and Energy Union pay a penalty of $30,000 to the Commonwealth of Australia within 28 days.' 'Brendan Murphy pay a penalty of $4,500 to the Commonwealth of Australia within 28 days.' 'No order as to costs.' 'Applicant to serve orders on both respondents in accordance...