Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972

Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972

Mr Powell contravened s 494(1) on four occasions as an official exercising a State OHS right without a permit; the legal position was novel and his honest mistaken belief mitigates penalty. Objective seriousness is low, but his prior history increases deterrence need. Aggregate penalty is discounted for course of conduct and totality. $2,600 penalty imposed.

Jurisdiction
Australia
Judgment Date
21 June 2019
Procedural Posture
Civil / Post Remittal Final Orders After Liability Findings
Outcome
Declarations made; penalty imposed; no order as to costs; proceeding otherwise dismissed.
Legal Topics
['contravention of Permit Requirements' 'imposition of Pecuniary Penalties' 'totality Principle' 'deterrence' 'penalty Assessment']
['industrial Law' 'employment Law'] ['contravention of Permit Requirements' 'imposition of Pecuniary Penalties' 'totality Principle' 'deterrence' 'penalty Assessment']

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Procedural Posture

Civil / Post Remittal Final Orders After Liability Findings

Legal Issues

  1. 1 ['Whether respondent contravened s 494(1) of the Fair Work Act 2009 (Cth) by exercising a State OHS right without being a permit holder' 'Appropriate penalty and whether penalty should be imposed given honest but mistaken belief as to law' 'Application of totality and course of conduct principles to penalties']

Ratio Decidendi

Mr Powell contravened s 494(1) on four occasions as an official exercising a State OHS right without a permit; the legal position was novel and his honest mistaken belief mitigates penalty. Objective seriousness is low, but his prior history increases deterrence need. Aggregate penalty is discounted for course of conduct and totality. $2,600 penalty imposed.

Court Disposition

Declarations made; penalty imposed; no order as to costs; proceeding otherwise dismissed.

Orders

  • ['Declaration of contravention of s 494 on specified dates' 'Respondent to pay aggregate penalty of $2,600 to Commonwealth within 28 days' 'No order as to costs' 'Proceeding otherwise dismissed']