Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) challenged penalties imposed by the Australian Building and Construction Commissioner (Commissioner) under sections 499 and 500 of the Fair Work Act 2009 (Cth). The dispute was heard in the Full Court of the Federal Court of Australia. The central issue before the Court was whether the penalties imposed for the contravention of section 500 of the Act were valid, considering that the conduct constituting those contraventions was wholly subsumed within the conduct constituting the contraventions of section 499. The Court was also tasked with interpreting the meaning of "conduct" in section 556 of the Act and determining whether the penalties imposed constituted a form of civil double jeopardy.

The Court examined the language and purpose of section 556, which provides that a person shall not be subject to more than one penalty for the same conduct. It considered whether "conduct" should be understood to include not only physical acts and omissions but also elements of character or circumstance relevant to a given contravention. The Court explored the common law principles of double jeopardy and their application to civil proceedings. Ultimately, the Court concluded that the penalties imposed in respect of the section 500 contravention were not in any way referable to the conduct constituting the contraventions of section 499, and therefore the imposition of separate penalties did not constitute civil double jeopardy.

In light of this reasoning, the Court allowed the appeal, setting aside Orders 7 and 10 of the orders made on 6 June 2019. The Court made no order as to the costs of the appeal and dismissed the appeal in all other respects. The orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.