Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120

Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120

The trial judge's penalty determinations were flawed by multiple errors of principle, including improper assessment of contraventions as a single act, misapplication of sentencing parity, insufficient consideration of prior relevant conduct, and unsound mitigation for individual respondents. The appellate court set aside the penalty orders and determined penalties afresh, finding the Union's conduct more culpable than Walton's and individual respondents deserving of penalties with partial suspension.

Parties
Appellant: John William Draffin; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Steve Allen; Third Respondent: Gerard Benstead; Fourth Respondent: Bill Oliver
Jurisdiction
Australia
Judgment Date
10 September 2009
Procedural Posture
Appeal / Judgment on Appeal From a Single Judge of the Federal Court
Outcome
Appeal allowed in part; penalties varied and imposed
Legal Topics
Penalties, Parity of Penalties, Single Course of Conduct, Multiple Breaches, Prior Contravening Conduct, Coercion, Freedom of Association
Industrial Law Penalties Parity of Penalties Single Course of Conduct Multiple Breaches Prior Contravening Conduct Coercion Freedom of Association

Case Brief

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Parties

John William Draffin

Appellant

Construction, Forestry, Mining and Energy Union

First Respondent

Steve Allen

Second Respondent

Gerard Benstead

Third Respondent

Bill Oliver

Fourth Respondent

Procedural Posture

Appeal / Judgment on Appeal From a Single Judge of the Federal Court

Legal Issues

  1. 1 Whether errors of principle affected penalty decisions
  2. 2 Appropriate penalties for multiple breaches in a single course of conduct
  3. 3 Parity with penalties imposed for similar conduct

Ratio Decidendi

The trial judge's penalty determinations were flawed by multiple errors of principle, including improper assessment of contraventions as a single act, misapplication of sentencing parity, insufficient consideration of prior relevant conduct, and unsound mitigation for individual respondents. The appellate court set aside the penalty orders and determined penalties afresh, finding the Union's conduct more culpable than Walton's and individual respondents deserving of penalties with partial suspension.

Court Disposition

Appeal allowed in part; penalties varied and imposed

Orders

  • Order 1 varied: Union penalty increased from $18,000 to $50,000 for breach of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).
  • Penalties of $8,000 each imposed on Allen, Benstead, and Oliver for breach of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).