Stuart v Construction, Forestry, Mining and Energy Union [2009] FCA 1119

Stuart v Construction, Forestry, Mining and Energy Union [2009] FCA 1119

The appropriate total penalty was $5,000 because the admitted contraventions were relatively minor, the s 38 contravention involved a 20 minute stop-work meeting by 23 workers followed by a further cessation of work influenced by s 507(2) of the Workplace Relations Act 1996 (Cth), the s 44 contravention was at the very lowest end of the spectrum given the absence of actual undue pressure and absence of proven effect, the first respondent's liability was only vicarious, loss or damage was not quantified, and the overlap between the stop-work meeting forming part of both contraventions required reduction of the aggregate penalties.

Jurisdiction
Australia
Judgment Date
02 October 2009
Procedural Posture
Civil Penalty Proceeding Under the Building and Construction Industry Improvement Act 2005 (cth) Concerning Admitted Industrial Law Contraventions / Penalty After Settlement on Agreed Facts
Outcome
First respondent ordered to pay total penalties of $5,000 to the Commonwealth; otherwise the application was dismissed; no order as to costs by consent.
Legal Topics
['unlawful Industrial Action' 'undue Pressure to Make a Building Agreement' 'civil Penalties' 'vicarious Liability of Union for Shop Steward Conduct' 'deterrence']
['industrial Law' 'building and Construction Industry Regulation'] ['unlawful Industrial Action' 'undue Pressure to Make a Building Agreement' 'civil Penalties' 'vicarious Liability of Union for Shop Steward Conduct' 'deterrence']

Case Brief

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Procedural Posture

Civil Penalty Proceeding Under the Building and Construction Industry Improvement Act 2005 (cth) Concerning Admitted Industrial Law Contraventions / Penalty After Settlement on Agreed Facts

Legal Issues

  1. 1 ['What penalty should be imposed on the first respondent for the admitted contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth).' 'What penalty should be imposed on the first respondent for the admitted contravention of s 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth).' 'Whether the admitted conduct involved actual undue pressure, wilful contravention, proven loss or damage, and circumstances requiring deterrence.' 'Whether declarations sought by consent should be made.']

Ratio Decidendi

The appropriate total penalty was $5,000 because the admitted contraventions were relatively minor, the s 38 contravention involved a 20 minute stop-work meeting by 23 workers followed by a further cessation of work influenced by s 507(2) of the Workplace Relations Act 1996 (Cth), the s 44 contravention was at the very lowest end of the spectrum given the absence of actual undue pressure and absence of proven effect, the first respondent's liability was only vicarious, loss or damage was not quantified, and the overlap between the stop-work meeting forming part of both contraventions required reduction of the aggregate penalties.

Court Disposition

First respondent ordered to pay total penalties of $5,000 to the Commonwealth; otherwise the application was dismissed; no order as to costs by consent.

Orders

  • ['Within 30 days, the first respondent pay to the Commonwealth of Australia penalties totalling $5,000 in respect of the admitted contraventions of s 38 and s 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth).' 'Otherwise, the application be dismissed.' 'By consent, there be no order as to...