Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FCA 36

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FCA 36

Mid-range, substantial penalties are appropriate for recidivist breaches of Fair Work Act s 500 on multiple distinct dates, following admitted contraventions and in light of prior history. Personal payment orders are warranted for deterrence against individuals with prior records. The aggregate penalties imposed are not disproportionate. Contraventions do not form a single course of conduct.

Jurisdiction
Australia
Judgment Date
30 January 2023
Procedural Posture
Civil Penalty Proceedings / Penalty Determination Following Admissions
Outcome
Pecuniary penalties imposed on all respondents; declarations of contraventions; personal payment orders for two individuals; no order as to costs.
Legal Topics
['contravention of Fair Work Act S 500' 'pecuniary Penalties' 'personal Payment Orders' 'general and Specific Deterrence' 'principle of Totality' 'course of Conduct Principle']
['industrial Law' 'employment Law'] ['contravention of Fair Work Act S 500' 'pecuniary Penalties' 'personal Payment Orders' 'general and Specific Deterrence' 'principle of Totality' 'course of Conduct Principle']

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Procedural Posture

Civil Penalty Proceedings / Penalty Determination Following Admissions

Legal Issues

  1. 1 ['What is the appropriate penalty for admitted breaches of section 500 of the Fair Work Act by the respondents?' 'Should personal payment orders be made against individual respondents?' 'Does recidivism and the prior history of contraventions warrant higher penalties?' 'Whether the contraventions formed a single course of conduct and impact penalty calculation']

Ratio Decidendi

Mid-range, substantial penalties are appropriate for recidivist breaches of Fair Work Act s 500 on multiple distinct dates, following admitted contraventions and in light of prior history. Personal payment orders are warranted for deterrence against individuals with prior records. The aggregate penalties imposed are not disproportionate. Contraventions do not form a single course of conduct.

Court Disposition

Pecuniary penalties imposed on all respondents; declarations of contraventions; personal payment orders for two individuals; no order as to costs.

Orders

  • ['First respondent to pay a pecuniary penalty of $25,000 for each of 11 contraventions, totalling $275,000.' 'Second respondent to pay a pecuniary penalty of $6,000 for each of four contraventions, totalling $24,000, to be paid personally.' 'Third respondent to pay a pecuniary penalty of $5,000 for each of two...