Director of the Fair Work Building Industry Inspectorate v Upton

In the case of Director of the Fair Work Building Industry Inspectorate v Upton, the dispute centred on contraventions of section 500 of the Fair Work Act 2009 (Cth) by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The contraventions in question involved the use of abusive language and holding a meeting in an area primarily used for residential purposes. The matter was heard in the Fair Work Commission. The legal issues before the Commission were the determination of appropriate penalties for the admitted contraventions, taking into account factors such as the deliberate nature of the contraventions, the display of contrition, corrective actions taken, and the need for both general and specific deterrence.

The Commission found that the contraventions were deliberate and not mitigated by Upton's lack of seniority within the CFMEU. However, credit was given for the early admissions of the facts and contraventions, which facilitated the course of justice and avoided additional costs. While Upton displayed genuine remorse and proposed to avoid such conduct in the future, the CFMEU did not show any contrition and failed to formally apologise for Upton's conduct. The Commission also considered the history of prior similar contraventions by the CFMEU and imposed penalties for specific deterrence. The penalties were set at $15,000 for the first contravention and $5,000 for the second contravention, with the parties agreeing that these should be paid to the Commonwealth.

The final orders of the Commission were that the first respondent pay a pecuniary penalty of $3,000 for one contravention, the third respondent pay a penalty of $15,000 for the first contravention, a penalty of $1,000 for another contravention, and a penalty of $5,000 for the second contravention. These penalties were to be paid to the Commonwealth in accordance with section 546(3)(a) of the FW Act.