Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited (No 2) [2016] FCA 809

Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited (No 2) [2016] FCA 809

Clermont Coal Pty Limited contravened ss 340 and 346 of the Fair Work Act 2009 (Cth) by dismissing the second applicant for reasons including his exercise of workplace rights and participation in industrial activity; separate penalties for each contravention are appropriate, the penalty total should reflect the totality principle, and relief should restore the second applicant as if there had been no interruption to service; pecuniary penalty should be paid to the applicant union.

Jurisdiction
Australia
Judgment Date
14 July 2016
Procedural Posture
Industrial Law Civil Penalty Application / Assessment of Penalty and Relief Following Liability Judgment
Outcome
Declarations made as to contraventions; orders for continuity of employment, compensation, amendments to PAYG summaries; pecuniary penalty of $5,000 imposed and payable to the union.
Legal Topics
['adverse Action' 'workplace Rights' 'industrial Activity' 'reinstatement' 'pecuniary Penalty' 'fair Work Act']
['employment Law' 'industrial Law'] ['adverse Action' 'workplace Rights' 'industrial Activity' 'reinstatement' 'pecuniary Penalty' 'fair Work Act']

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Procedural Posture

Industrial Law Civil Penalty Application / Assessment of Penalty and Relief Following Liability Judgment

Legal Issues

  1. 1 ['Whether the respondent contravened ss 340 and 346 of the Fair Work Act 2009 (Cth)' 'Assessment of pecuniary penalties and whether the conduct constitutes separate or a single contravention' 'Appropriate form of declarations as to contraventions' 'Whether reinstatement and financial restoration is appropriate' 'Payment of pecuniary penalties to the union']

Ratio Decidendi

Clermont Coal Pty Limited contravened ss 340 and 346 of the Fair Work Act 2009 (Cth) by dismissing the second applicant for reasons including his exercise of workplace rights and participation in industrial activity; separate penalties for each contravention are appropriate, the penalty total should reflect the totality principle, and relief should restore the second applicant as if there had been no interruption to service; pecuniary penalty should be paid to the applicant union.

Court Disposition

Declarations made as to contraventions; orders for continuity of employment, compensation, amendments to PAYG summaries; pecuniary penalty of $5,000 imposed and payable to the union.

Orders

  • ['Respondent contravened ss 340 and 346 Fair Work Act 2009 (Cth) by dismissal of second applicant for prohibited reasons.' 'For remuneration and entitlements, respondent to treat second applicant as continuously employed from 14 Nov 2014 to 6 Oct 2015.' 'Respondent to pay compensation for lost income and...