Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) [2023] FCA 219

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) [2023] FCA 219

Penalties are imposed based on a genuine but mistaken belief by respondents (supported by the regulator), but conduct after entry is assessed as low to middle seriousness; course of conduct and personal payment principles largely adopted; no suspended penalties; penalties determined according to totality and deterrence considerations.

Parties
Applicant: Fair Work Ombudsman; First Respondent: Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU); Second Respondent: Kurt Pauls; Third Respondent: Beau Seiffert; Fourth Respondent: Te Aranui Albert; Fifth Respondent: Blake Hynes; Sixth Respondent: Luke Gibson; Seventh Respondent: Matthew Parfitt; Eighth Respondent: Royce Kupsch
Jurisdiction
Australia
Judgment Date
16 March 2023
Procedural Posture
Civil Penalty Proceeding / Penalty Determination Following Liability Judgment
Outcome
Pecuniary penalties imposed on all respondents; personal payment orders made; no suspended penalties; no order as to costs.
Legal Topics
Civil Pecuniary Penalties, Right of Entry, General and Specific Deterrence, Personal Payment Orders, Suspended Penalties
Employment and Industrial Relations Industrial Law Civil Pecuniary Penalties Right of Entry General and Specific Deterrence Personal Payment Orders Suspended Penalties

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Parties

Fair Work Ombudsman

Applicant

Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)

First Respondent

Kurt Pauls

Second Respondent

Beau Seiffert

Third Respondent

Te Aranui Albert

Fourth Respondent

Blake Hynes

Fifth Respondent

Luke Gibson

Sixth Respondent

Matthew Parfitt

Seventh Respondent

Royce Kupsch

Eighth Respondent

Procedural Posture

Civil Penalty Proceeding / Penalty Determination Following Liability Judgment

Legal Issues

  1. 1 What pecuniary penalties should be imposed for contraventions of ss 494(1), 497 and 500 of the Fair Work Act 2009 (Cth)?
  2. 2 Application of principles of general and specific deterrence to penalty assessment
  3. 3 Whether personal payment orders should be made against individual respondents

Ratio Decidendi

Penalties are imposed based on a genuine but mistaken belief by respondents (supported by the regulator), but conduct after entry is assessed as low to middle seriousness; course of conduct and personal payment principles largely adopted; no suspended penalties; penalties determined according to totality and deterrence considerations.

Court Disposition

Pecuniary penalties imposed on all respondents; personal payment orders made; no suspended penalties; no order as to costs.

Orders

  • CFMMEU to pay $85,000.00 pecuniary penalty within 28 days to Commonwealth of Australia.
  • Kurt Pauls to pay $30,000.00 pecuniary penalty within 90 days to Commonwealth of Australia.