Wotherspoon v Construction Forestry Mining & Energy Union [2010] FCA 111

Wotherspoon v Construction Forestry Mining & Energy Union [2010] FCA 111

The Court declined to proceed in accordance with the parties' agreement on penalties because the agreed facts were inadequate to assess whether the proposed penalties for 23 May 2008 and 5 August 2008 were within the permissible range, and because there was a fundamental disagreement about whether the events of 28 August 2008 constituted one or more contraventions by each union, preventing the Court from being satisfied that the agreed penalties for that day were neither manifestly inadequate nor manifestly excessive.

Jurisdiction
Australia
Judgment Date
23 February 2010
Procedural Posture
Application for Declarations and Imposition of Penalties for Alleged Contraventions of S 38 of the Building and Construction Industry Improvement Act 2005 (cth) / After Filing of a Statement of Agreed Facts and Submissions on Agreed Penalties; Proceeding Listed for Directions
Outcome
The Court declined to proceed in accordance with the parties' agreement on penalties and listed the proceeding for directions.
Legal Topics
['building Industrial Action' 'agreed Civil Penalties' 'contraventions of S 38 of the Building and Construction Industry Improvement Act 2005 (cth)' 'single Course of Conduct' 'adequacy of Agreed Facts for Penalty Assessment']
['industrial Law' 'building and Construction Industry Regulation' 'civil Penalties'] ['building Industrial Action' 'agreed Civil Penalties' 'contraventions of S 38 of the Building and Construction Industry Improvement Act 2005 (cth)' 'single Course of Conduct' 'adequacy of Agreed Facts for Penalty Assessment']

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Procedural Posture

Application for Declarations and Imposition of Penalties for Alleged Contraventions of S 38 of the Building and Construction Industry Improvement Act 2005 (cth) / After Filing of a Statement of Agreed Facts and Submissions on Agreed Penalties; Proceeding Listed for Directions

Legal Issues

  1. 1 ['Whether the Court should impose the penalties agreed by the parties for admitted contraventions of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth).' "Whether the Statement of Agreed Facts provided an adequate basis to assess the nature, extent and gravity of the respondents' admitted contraventions." 'Whether the events of 28 August 2008 should be treated as one contravention or more than one contravention by each union for penalty purposes.']

Ratio Decidendi

The Court declined to proceed in accordance with the parties' agreement on penalties because the agreed facts were inadequate to assess whether the proposed penalties for 23 May 2008 and 5 August 2008 were within the permissible range, and because there was a fundamental disagreement about whether the events of 28 August 2008 constituted one or more contraventions by each union, preventing the Court from being satisfied that the agreed penalties for that day were neither manifestly inadequate nor manifestly excessive.

Court Disposition

The Court declined to proceed in accordance with the parties' agreement on penalties and listed the proceeding for directions.

Orders

  • ['The proceeding be listed for directions at 9:30 am on 1 March 2010.']