Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72

Orders of primary judge imposing pecuniary penalties were set aside due to errors: failure to consider absence of loss, improper aggravation for contesting, and not considering reduction in specific deterrence for Mr Ravbar; on re-determination, penalties were set at levels reflecting the seriousness of contravening conduct, deterrence, limited by course of conduct, and reduced for utilitarian value of admissions.

Jurisdiction
Australia
Judgment Date
10 February 2023
Procedural Posture
Appeal / Judgment After Hearing and Re Determination of Penalties
Outcome
Appeal allowed. Penalties re-determined.
Legal Topics
['fair Work Act 2009 (cth)' 'civil Penalties' 'industrial Law' 'right of Entry' 'pecuniary Penalties' 'deterrence' 'utilitarian Value of Admissions' 'past Contraventions' 'course of Conduct Principle']
['employment and Industrial Relations'] ['fair Work Act 2009 (cth)' 'civil Penalties' 'industrial Law' 'right of Entry' 'pecuniary Penalties' 'deterrence' 'utilitarian Value of Admissions' 'past Contraventions' 'course of Conduct Principle']

Case Brief

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Procedural Posture

Appeal / Judgment After Hearing and Re Determination of Penalties

Legal Issues

  1. 1 ['Whether the quantum of pecuniary penalties imposed was manifestly excessive or contained error' 'Whether the absence of loss or adverse consequence should be considered in penalty assessment' 'Whether utilitarian value of admissions (e.g., saving court resources) can reduce penalty' 'What past contraventions are relevant to assessment of penalty for deterrence' 'Whether two judgments against Mr Blakeley after primary judgment are relevant']

Ratio Decidendi

Orders of primary judge imposing pecuniary penalties were set aside due to errors: failure to consider absence of loss, improper aggravation for contesting, and not considering reduction in specific deterrence for Mr Ravbar; on re-determination, penalties were set at levels reflecting the seriousness of contravening conduct, deterrence, limited by course of conduct, and reduced for utilitarian value of admissions.

Court Disposition

Appeal allowed. Penalties re-determined.

Orders

  • ['Orders A, B, C and D of the Federal Circuit and Family Court of Australia (Div 2) on 3 February 2022 are set aside.' 'First appellant (CFMMEU) to pay pecuniary penalty of $36,630 for each of its two contraventions of s 500 of the Fair Work Act 2009 (Cth), total $73,260, to the Commonwealth of Australia within 28...