Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243

Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243

The admitted conduct was a serious but transient and confined request that Walton exclude Monjon because Monjon employees were employed on AWAs. The s 43 BCII Act contravention was the strongest statutory expression of the conduct because it involved coercion and therefore attracted the main penalty, while the s 45 BCII Act and s 298P WR Act contraventions arose from essentially the same conduct and attracted smaller penalties under the totality principle. The appropriate penalties also reflected the lack of significant disruption or proven loss, admitted contraventions, cooperation, the Union seminar, deterrence, comparison with Walton's penalty and Stuart-Mahoney, and the roles of the...

Jurisdiction
Australia
Judgment Date
17 March 2009
Procedural Posture
Industrial Relations Civil Penalty Proceeding / Determination of Penalty and Declarations After Admitted Contraventions
Outcome
Penalties imposed on the first respondent and on the third and fourth respondents, with the latter wholly suspended; declarations made against the second, third and fourth respondents.
Legal Topics
['coercion in Allocation of Building Work Responsibilities' 'discrimination Based on Industrial Instruments' 'australian Workplace Agreements' "union Liability for Officers' Conduct" 'penalty Assessment' 'totality Principle' 'specific and General Deterrence']
['industrial Relations' 'building and Construction Industry Regulation' 'civil Penalties'] ['coercion in Allocation of Building Work Responsibilities' 'discrimination Based on Industrial Instruments' 'australian Workplace Agreements' "union Liability for Officers' Conduct" 'penalty Assessment' 'totality Principle' 'specific and General Deterrence']

Case Brief

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Procedural Posture

Industrial Relations Civil Penalty Proceeding / Determination of Penalty and Declarations After Admitted Contraventions

Legal Issues

  1. 1 ['What penalties should be imposed for admitted contraventions of s 43 and s 45 of the Building and Construction Industry Improvement Act 2005 (Cth) and s 298P of the Workplace Relations Act 1996 (Cth).' 'Whether the Union respondents should be punished separately for separate statutory contraventions arising from essentially one unlawful act.' 'What relief should be ordered against the individual respondents, including whether fines should be imposed or declarations made.']

Ratio Decidendi

The admitted conduct was a serious but transient and confined request that Walton exclude Monjon because Monjon employees were employed on AWAs. The s 43 BCII Act contravention was the strongest statutory expression of the conduct because it involved coercion and therefore attracted the main penalty, while the s 45 BCII Act and s 298P WR Act contraventions arose from essentially the same conduct and attracted smaller penalties under the totality principle. The appropriate penalties also reflected the lack of significant disruption or proven loss, admitted contraventions, cooperation, the Union seminar, deterrence, comparison with Walton's penalty and Stuart-Mahoney, and the roles of the...

Court Disposition

Penalties imposed on the first respondent and on the third and fourth respondents, with the latter wholly suspended; declarations made against the second, third and fourth respondents.

Orders

  • ['A penalty of $18,000 is imposed on the first respondent for contravening s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act).' 'A penalty of $2,000 is imposed on the first respondent for contravening s 45 of the BCII Act.' 'A penalty of $750 is imposed on the first respondent...