Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202

Given the Union’s extensive and ongoing record of contraventions, the absence of remorse, and the seriousness of Mr Tadic’s conduct, the penalties for both respondents should be set at or near the statutory maximum. The Union’s conduct and history mean the maximum penalty is proportionate; for Mr Tadic, some discount is appropriate for genuine concern for safety. No non-indemnification order is warranted as Mr Tadic acted as the Union’s agent as part of its broader conduct.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Maritime, Mining and Energy Union; Second Respondent: Alec Tadic
Jurisdiction
Australia
Judgment Date
27 February 2020
Procedural Posture
Application for Civil Penalty and Declarations / Penalty Determination After Liability Admitted
Outcome
Penalties imposed for contraventions; name of Union amended; no order as to costs; proceeding otherwise dismissed.
Legal Topics
Pecuniary Penalties, Section 500 Fair Work Act, Union Accessorial Liability, Application of Penalty Principles, Recidivism and Proportionality in Penalties
Industrial Law Employment Law Pecuniary Penalties Section 500 Fair Work Act Union Accessorial Liability Application of Penalty Principles Recidivism and Proportionality in Penalties

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Maritime, Mining and Energy Union

First Respondent

Alec Tadic

Second Respondent

Procedural Posture

Application for Civil Penalty and Declarations / Penalty Determination After Liability Admitted

Legal Issues

  1. 1 Appropriate penalty for contraventions of s 500 of the Fair Work Act 2009 (Cth)
  2. 2 Significance of prior contraventions by the Union and Mr Tadic in penalty determination
  3. 3 Whether the Union should be prohibited from indemnifying Mr Tadic

Ratio Decidendi

Given the Union’s extensive and ongoing record of contraventions, the absence of remorse, and the seriousness of Mr Tadic’s conduct, the penalties for both respondents should be set at or near the statutory maximum. The Union’s conduct and history mean the maximum penalty is proportionate; for Mr Tadic, some discount is appropriate for genuine concern for safety. No non-indemnification order is warranted as Mr Tadic acted as the Union’s agent as part of its broader conduct.

Court Disposition

Penalties imposed for contraventions; name of Union amended; no order as to costs; proceeding otherwise dismissed.

Orders

  • The name of the first respondent be amended from the 'Construction, Forestry, Mining and Energy Union' to the 'Construction, Forestry, Maritime, Mining and Energy Union'.
  • The second respondent pay a penalty of $8,500 in respect of his contravention of section 500 of the Act.