Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union

In the Federal Court of Australia, the Director of the Fair Work Building Industry Inspectorate brought proceedings against the Construction, Forestry, Mining and Energy Union (CFMEU) and several of its officials, alleging contraventions of section 500 of the Fair Work Act 2009 (Cth). The court was required to determine whether the respondents had contravened section 500 of the Act and, if so, to determine the appropriate penalties. The Director also sought declarations to confirm the contraventions and to require the payment of the penalties.

The court examined the legal principles guiding the imposition of penalties under section 500 of the Act, including the general principles of penalties, the significance of previous contraventions, and the totality principle. The court noted that the Director did not seek a declaration that the CFMEU had committed a separate contravention of section 500 by reason of Mr Cartledge's conduct as an accessory to Mr Stephenson's contravention, nor did the Director seek the imposition of a penalty on the CFMEU for such a separate contravention. The court found that Mr Stephenson, Mr Cartledge, and Mr Kirner had all contravened section 500, and that the CFMEU had contravened section 500 by reason of their conduct. The court accepted the Director's submission that Mr Stephenson's conduct amounted to a deliberate and premeditated contravention of section 500, and that Mr Cartledge had directed Mr Stephenson not to provide written notice of his entry onto the SAHMRI site.

The court determined the appropriate penalties for the contraventions, taking into account the general principles of penalties and the totality principle. The court ordered that Mr Stephenson pay a pecuniary penalty of $1,750, the CFMEU pay a pecuniary penalty of $30,000, Mr Cartledge pay a pecuniary penalty of $3,750, Mr Kirner pay a pecuniary penalty of $700, and the CFMEU pay a pecuniary penalty of $18,000. The court also made declarations confirming the contraventions and requiring the payment of the penalties. The court noted that each of the pecuniary penalties was to be paid to the Commonwealth of Australia.