Construction, Forestry, Mining and Energy Union v State of Victoria (No 2)

The case, Construction, Forestry, Mining and Energy Union v State of Victoria (No 2), was heard by Bromberg J in the Federal Court of Australia. The matter involved two proceedings, VID 1097 of 2012 and VID 10 of 2013, where the Construction, Forestry, Mining and Energy Union (CFMEU) sought penalties against the State of Victoria and McCorkell Constructions Pty Ltd for contraventions of the Fair Work Act 2009 (FW Act). In the Lend Lease proceeding (VID 1097 of 2012), the State of Victoria was found to have contravened section 340(1)(a)(i) of the FW Act by threatening Lend Lease due to its employees' entitlement to an enterprise agreement. In the McCorkell proceeding (VID 10 of 2013), the State was found to have contravened section 343(1)(a) of the FW Act by coercing Eco and its employees regarding their enterprise agreement.

The court first addressed the issue of whether the State of Victoria could be subject to civil pecuniary penalties under the FW Act. The State argued that the Cain v Doyle presumption, which suggests that Parliament does not intend to impose criminal sanctions on the Crown unless clearly stated, should extend to civil penalties. The court disagreed, finding that while the Cain v Doyle presumption applies to criminal sanctions, it does not necessarily extend to civil penalties. The court concluded that the State was amenable to a civil pecuniary penalty based on the intent of the FW Act and the principle of equality before the law.

Regarding the penalty amount, the court emphasized deterrence as the primary objective of imposing penalties under the FW Act. The court imposed a penalty of $25,000 on the State for the contravention in the Lend Lease proceeding and $28,000 for the contravention in the McCorkell proceeding. The penalties were intended to send a strong message of deterrence to other potential contraveners, considering the seriousness of the conduct, the deliberate nature of the contraventions, and the influence and standing of the State.

Finally, the court ordered that the penalties be paid to the CFMEU within 14 days, staying the orders pending the outcome of the appeals against the earlier judgments.