Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480

Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480

A penalty was required because, although the respondent honestly and reasonably misconstrued the Enterprise Agreement, it knew the applicant disputed the reduction in Roster Allowance, appreciated the risk of contravening the agreement, failed to seek a declaration, had previously been penalised for a contravention of the same Enterprise Agreement, and reduced payments for its own financial benefit to the detriment of employees. The 506 contraventions arose from a single course of conduct, but applying totality required reducing the aggregate penalty to $90 per contravention, totalling $45,540.

Jurisdiction
Australia
Judgment Date
12 April 2018
Procedural Posture
Industrial Law Proceeding Concerning Contraventions of S 50 of the Fair Work Act 2009 (cth) / Penalty Determination Following Liability Judgment, Declaratory Order and Compensation Orders
Outcome
Pecuniary penalties imposed on the respondent for 506 contraventions of s 50 of the Fair Work Act 2009 (Cth).
Legal Topics
['contraventions of Enterprise Agreement' 'fair Work Act Pecuniary Penalties' 'assessment of Penalties' 'course of Conduct Principle' 'totality Principle' 'declaratory Orders']
['industrial Law' 'employment and Industrial Relations'] ['contraventions of Enterprise Agreement' 'fair Work Act Pecuniary Penalties' 'assessment of Penalties' 'course of Conduct Principle' 'totality Principle' 'declaratory Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Industrial Law Proceeding Concerning Contraventions of S 50 of the Fair Work Act 2009 (cth) / Penalty Determination Following Liability Judgment, Declaratory Order and Compensation Orders

Legal Issues

  1. 1 ['Whether a pecuniary penalty should be imposed for 506 contraventions of s 50 of the Fair Work Act 2009 (Cth).' 'What amount of penalty should be imposed for each contravention and in aggregate.' "Whether the respondent's honest and reasonable but erroneous construction of the Enterprise Agreement justified no penalty or a reduced penalty." 'Whether the number of contraventions should be specified in the declaratory order.']

Ratio Decidendi

A penalty was required because, although the respondent honestly and reasonably misconstrued the Enterprise Agreement, it knew the applicant disputed the reduction in Roster Allowance, appreciated the risk of contravening the agreement, failed to seek a declaration, had previously been penalised for a contravention of the same Enterprise Agreement, and reduced payments for its own financial benefit to the detriment of employees. The 506 contraventions arose from a single course of conduct, but applying totality required reducing the aggregate penalty to $90 per contravention, totalling $45,540.

Court Disposition

Pecuniary penalties imposed on the respondent for 506 contraventions of s 50 of the Fair Work Act 2009 (Cth).

Orders

  • ['The respondent pay a penalty of $90 for each of its 506 contraventions of s 50 of the Fair Work Act 2009 (Cth), a total of $45,540.' 'The respondent pay the penalties to the applicant within 28 days.']