Australian Building and Construction Commissioner v Fissenden [2020] FCA 945

Australian Building and Construction Commissioner v Fissenden [2020] FCA 945

Although Mr Fissenden and the Union's conduct was serious and violated the principle of freedom of association, it was limited in scope and not enacted in full; given the Union’s prior contraventions but the absence of 'worst category' conduct, a mid-range penalty is proportionate. Mr Fissenden’s junior status and first contravention warranted a lower-range penalty. Penalties should observe proportionality, reserving maximum penalty for gravest contraventions, and should serve as specific and general deterrence.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: James Fissenden; Second Respondent: Construction, Forestry, Maritime, Mining and Energy Union
Jurisdiction
Australia
Judgment Date
09 July 2020
Procedural Posture
Civil Penalty Proceedings / Judgment and Orders
Outcome
Declarations made; pecuniary penalties imposed on first and second respondents.
Legal Topics
Pecuniary Penalties, Freedom of Association, Adverse Action, Industrial Activity, Deterrence
Industrial Law Employment Law Pecuniary Penalties Freedom of Association Adverse Action Industrial Activity Deterrence

Case Brief

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Parties

Australian Building and Construction Commissioner

Applicant

James Fissenden

First Respondent

Construction, Forestry, Maritime, Mining and Energy Union

Second Respondent

Procedural Posture

Civil Penalty Proceedings / Judgment and Orders

Legal Issues

  1. 1 Whether Mr Fissenden contravened ss 346 and 348 of the Fair Work Act 2009 (Cth)
  2. 2 Whether the Union contravened ss 346 and 348 by reason of Mr Fissenden's conduct
  3. 3 Appropriate quantum of pecuniary penalty for contravention

Ratio Decidendi

Although Mr Fissenden and the Union's conduct was serious and violated the principle of freedom of association, it was limited in scope and not enacted in full; given the Union’s prior contraventions but the absence of 'worst category' conduct, a mid-range penalty is proportionate. Mr Fissenden’s junior status and first contravention warranted a lower-range penalty. Penalties should observe proportionality, reserving maximum penalty for gravest contraventions, and should serve as specific and general deterrence.

Court Disposition

Declarations made; pecuniary penalties imposed on first and second respondents.

Orders

  • First respondent (James Fissenden) to pay pecuniary penalty of $4,000 for contravention of s 348 of the Fair Work Act 2009 (Cth).
  • Second respondent (Union) to pay pecuniary penalty of $40,000 for contravention of s 348 of the Fair Work Act 2009 (Cth).