BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] FCA 193

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] FCA 193

A pecuniary penalty was warranted because the Overtime Policy was deliberately promulgated by the union, was long-standing and widely circulated at the Peak Downs Mine, unlawfully purported to restrict workers undertaking unrostered overtime, and supported an inference of intentional impact on the applicant. The contraventions of ss 340, 345, 349 and 417 arose from one overlapping and inter-related course of conduct, so multiple penalties were not warranted, but the seriousness of the conduct, lack of contrition or corrective action, the union's resources, and the need for specific and general deterrence justified the maximum penalty for a single contravention, payable to the applicant....

Jurisdiction
Australia
Judgment Date
11 March 2014
Procedural Posture
Industrial Law Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) / Penalty and Associated Orders Following Findings of Contravention
Outcome
The Court imposed a pecuniary penalty of $33,000 on the first respondent payable to the applicant and made additional orders prohibiting publication or implementation of the Overtime Policy and requiring a written statement that it is unlawful and withdrawn.
Legal Topics
['pecuniary Penalties' 'civil Penalty Provisions' 'adverse Action' 'overtime Policy' 'single Course of Conduct' 'specific and General Deterrence' 'payment of Penalty to Applicant']
['industrial Law' 'fair Work'] ['pecuniary Penalties' 'civil Penalty Provisions' 'adverse Action' 'overtime Policy' 'single Course of Conduct' 'specific and General Deterrence' 'payment of Penalty to Applicant']

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Procedural Posture

Industrial Law Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) / Penalty and Associated Orders Following Findings of Contravention

Legal Issues

  1. 1 ['Whether a pecuniary penalty ought to be imposed on the union for contraventions of ss 340, 345, 349 and 417 of the Fair Work Act 2009 (Cth).' 'Whether any pecuniary penalty should be paid to the applicant.' 'Whether the contraventions should be treated as arising from a single course of conduct or as separate contraventions warranting multiple penalties.' 'What quantum of penalty was appropriate.' 'Whether the union should be prohibited from publishing or otherwise implementing the Overtime Policy.' 'Whether the union should be required to issue a written statement that the Overtime Policy is unlawful and withdrawn.']

Ratio Decidendi

A pecuniary penalty was warranted because the Overtime Policy was deliberately promulgated by the union, was long-standing and widely circulated at the Peak Downs Mine, unlawfully purported to restrict workers undertaking unrostered overtime, and supported an inference of intentional impact on the applicant. The contraventions of ss 340, 345, 349 and 417 arose from one overlapping and inter-related course of conduct, so multiple penalties were not warranted, but the seriousness of the conduct, lack of contrition or corrective action, the union's resources, and the need for specific and general deterrence justified the maximum penalty for a single contravention, payable to the applicant....

Court Disposition

The Court imposed a pecuniary penalty of $33,000 on the first respondent payable to the applicant and made additional orders prohibiting publication or implementation of the Overtime Policy and requiring a written statement that it is unlawful and withdrawn.

Orders

  • ['Within 30 days of this Order the first respondent pay the applicant pecuniary penalties in the sum of $33,000, being the total penalties payable in respect of the contravention of s 340 of the Fair Work Act 2009 (Cth), the contravention of s 345 of the Fair Work Act, the contravention of s 349 of the Fair Work...