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Cozadinos v CFMEU

Cozadinos v CFMEU

Case [2009] FMCA 272 7 May 2009

Contravention of Legislation

Penalties

Specific Deterrence

General Deterrence

Accessorial Liability

Industrial Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

COZADINOS v CFMEU & ANOR

[2009] FMCA 272

INDUSTRIAL LAW – Contraventions of BCII Act and Workplace Relations Act – consideration of matters relevant to penalty.

Building and Construction Industry Improvement Act 2005
Workplace Relations Act 1996

Canturi v Sita Coaches Pty Ltd [2002] FCA 349
Kelly v Fitzpatrick [2007] FCA 1080
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
A. & L. Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426
Temple v Powell [2008] FCA 714, (2008) 173 IR 189
Director of Public Prosecutions v Johnston (2004) 10 VR 85
Alfred v Wakelin (No 1) [2008] FCA 1455
Cahill v Construction, Forestry, Mining and Energy Union (No 3) [2009] FCA 52
Veen v R (No 2) (1988) 164 CLR 465

Applicant:

MICHELLE COZADINOS

First Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent:

CRAIG JOHNSTON

File Number:

MLG 372 of 2008

Judgment of:

Burchardt FM

Hearing date:

2 March 2009

Date of Last Submission:

15 April 2009

Delivered at:

Melbourne

Delivered on:

7 May 2009

REPRESENTATION

Counsel for the Applicant:

Mr P.M. O'Grady

Solicitors for the Applicant:

Minter Ellison

Counsel for the Respondents:

Mr C.W. Dowling

Solicitors for the Respondent:

Slater & Gordon

ORDERS MADE 7 MAY 2009

That a penalty of $5,000 be imposed on the First Respondent for its contravention of the Building and Construction Industry Improvement Act 2005 declared by the Court in this proceeding.
That a penalty of $4,600 be imposed on the Second Respondent for his contravention of the Building and Construction Industry Improvement Act 2005 declared by the Court in this proceeding.

NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules2001 on 22 May 2009 to reflect the deletion of the amount “$7,000” and insert amount “$4,600” in Order 2.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 372 of 2008

MICHELLE COZADINOS

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AND ANOR

Respondents

REASONS FOR JUDGMENT

The issue now before the Court is what penalties, if any, I should impose upon the Respondents for the contraventions of the Building and Construction Industry Improvement Act 2005 (Cth) ("BCII Act") and the Workplace Relations Act 1996 (Cth) ("WR Act") that I have declared occurred on 10 December 2008.
The maximum penalties that may be imposed upon the Construction, Forestry, Mining and Energy Union (“CFMEU”) are $110,000 (BCII Act) and $22,000 (WR Act). The maximum penalties that may be imposed upon Mr Johnston are $33,000 (BCII Act) and $6,600 (WR Act).
For the reasons that follow, I have determined penalties should be imposed on the CFMEU in the sum of $5,000 and upon Mr Johnston in the sum of $7,000, for contraventions of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cozadinos v CFMEU

Details

AGLC: Cozadinos v CFMEU [2009] FMCA 272
Case: [2009] FMCA 272
Decision Date: 7 May 2009

CaseChat Overview and Summary

Michelle Cozadinos brought a case against the Construction, Forestry, Mining and Energy Union (CFMEU) and Craig Johnston before the Federal Magistrates Court of Australia. The dispute arose from alleged contraventions of the Building and Construction Industry Improvement Act 2005 (BCII Act) and the Workplace Relations Act 1996 (WR Act) during an industrial action incident on 10 December 2008. The court was tasked with determining the appropriate penalties for these contraventions.

The primary legal issues revolved around which act's penalties should apply and the quantum of penalties to impose on the CFMEU and Mr. Johnston. The court acknowledged that under section 735 of the WR Act, a person could not be ordered to pay a penalty under another law for the same conduct. However, the court found that the BCII Act was the more appropriate legislation for imposing penalties in this context due to its specific emphasis on the building industry and higher penalties for unlawful conduct. The court also considered various factors relevant to assessing the penalties, including the nature of the contraventions, prior conduct, the extent of vicarious liability, contrition, the need for deterrence, and the capacity to pay.

After considering all relevant factors, the court determined that a penalty of $5,000 should be imposed on the CFMEU and $7,000 on Mr. Johnston for their contraventions of the BCII Act. The court balanced the need for deterrence and the mitigating factors to arrive at these figures, ensuring that the penalties were neither excessive nor insufficient to serve their purpose. The court concluded that these penalties were appropriate and would adequately address the contraventions while considering the totality of the circumstances.

Orders