Draffin v Construction, Forestry, Mining and Energy Union [2007] FCA 2011

Draffin v Construction, Forestry, Mining and Energy Union [2007] FCA 2011

The admitted contraventions affected only three employees over a relatively limited period of three to four weeks, the fifth respondent had no prior relevant contraventions, admitted the contraventions early, cooperated with the applicant and the Australian Building and Construction Commission, and instituted educational measures. In those circumstances, an agreed total penalty of $50,000, with half not payable if no further relevant breach occurred within 12 months, was within the appropriate range against a maximum penalty of $143,000 and would achieve general deterrence.

Jurisdiction
Australia
Judgment Date
10 December 2007
Procedural Posture
Penalty Proceeding for Contraventions of the Building and Construction Industry Improvement Act 2005 (cth) and Workplace Relations Act 1996 (cth) / Reasons for Judgment and Orders Imposing Agreed Penalties
Outcome
Penalties imposed on the fifth respondent; each party to bear its own costs.
Legal Topics
['civil Penalties' 'freedom of Association' 'contraventions by Building Industry Participant' 'general Deterrence' 'agreed Facts and Agreed Penalty']
['industrial Law' 'building and Construction Industry Regulation'] ['civil Penalties' 'freedom of Association' 'contraventions by Building Industry Participant' 'general Deterrence' 'agreed Facts and Agreed Penalty']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Penalty Proceeding for Contraventions of the Building and Construction Industry Improvement Act 2005 (cth) and Workplace Relations Act 1996 (cth) / Reasons for Judgment and Orders Imposing Agreed Penalties

Legal Issues

  1. 1 ["Whether the agreed penalties for the fifth respondent's admitted contraventions of s 45 of the Building and Construction Industry Improvement Act 2005 (Cth) and s 298K(2)(d) of the Workplace Relations Act 1996 (Cth) were appropriate." 'Whether one half of the penalties should be suspended or excused if the fifth respondent committed no further relevant breaches within 12 months.']

Ratio Decidendi

The admitted contraventions affected only three employees over a relatively limited period of three to four weeks, the fifth respondent had no prior relevant contraventions, admitted the contraventions early, cooperated with the applicant and the Australian Building and Construction Commission, and instituted educational measures. In those circumstances, an agreed total penalty of $50,000, with half not payable if no further relevant breach occurred within 12 months, was within the appropriate range against a maximum penalty of $143,000 and would achieve general deterrence.

Court Disposition

Penalties imposed on the fifth respondent; each party to bear its own costs.

Orders

  • ['Subject to the order made in paragraph 2, a penalty of $40,000 be imposed on the fifth respondent for contravening s 45 of the Building and Construction Industry Improvement Act 2005 (Cth).' 'Subject to the order made in paragraph 2, a penalty of $10,000 be imposed on the fifth respondent for contravening s...