Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case) [2020] FCA 1742

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case) [2020] FCA 1742

The respondents intentionally contravened ss 494 and 500 of the Fair Work Act 2009 (Cth) by exercising OHS entry rights without a permit and by acting in an improper manner. The Court is satisfied that declarations and substantial penalties should be imposed, moderated by admissions, relevant mitigating factors, the course of conduct principle, and the totality principle. Personal payment orders are appropriate against Mr Hassett due to recidivism but not against Mr Harkins.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Maritime, Mining and Energy Union; Second Respondent: Richard Hassett; Third Respondent: Kevin Harkins
Jurisdiction
Australia
Judgment Date
03 December 2020
Procedural Posture
Civil Penalty Proceeding / Final Judgment – Declarations and Penalties
Outcome
Declarations made. Pecuniary penalties imposed. No order as to costs.
Legal Topics
Right of Entry, Union Officials, Workplace Health and Safety, Penalties, Civil Remedies, Accessory Liability
Industrial Law Employment Law Right of Entry Union Officials Workplace Health and Safety Penalties Civil Remedies Accessory Liability

Case Brief

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Maritime, Mining and Energy Union

First Respondent

Richard Hassett

Second Respondent

Kevin Harkins

Third Respondent

Procedural Posture

Civil Penalty Proceeding / Final Judgment – Declarations and Penalties

Legal Issues

  1. 1 Whether the respondents contravened sections 494 and 500 of the Fair Work Act 2009 (Cth) by exercising OHS rights without a permit and acting in an improper manner
  2. 2 Whether the penalties to be imposed should include personal payment orders and be moderated by the course of conduct principle

Ratio Decidendi

The respondents intentionally contravened ss 494 and 500 of the Fair Work Act 2009 (Cth) by exercising OHS entry rights without a permit and by acting in an improper manner. The Court is satisfied that declarations and substantial penalties should be imposed, moderated by admissions, relevant mitigating factors, the course of conduct principle, and the totality principle. Personal payment orders are appropriate against Mr Hassett due to recidivism but not against Mr Harkins.

Court Disposition

Declarations made. Pecuniary penalties imposed. No order as to costs.

Orders

  • The First Respondent pay pecuniary penalties: $50,000, $45,000, $45,000, $45,000 for specified contraventions.
  • The Second Respondent pay pecuniary penalties: $10,000 and $10,000 for specified contraventions.