Director of the Fair Work Building Inspectorate v CFMEU

The matter before the Federal Magistrates Court of Australia involved an application by the Director of the Fair Work Building Inspectorate (the Applicant) against the Construction, Forestry, Mining and Energy Union (the First Respondent) for the imposition of a penalty for a contravention of section 348 of the Fair Work Act 2009. The Applicant sought a penalty for an incident on 9 October 2009, at the RMIT Building 13 construction site in Melbourne, where the First Respondent, through its employee, Derek Christopher (the Second Respondent), allegedly threatened and abused the site manager of Hooker Cockram Pty Ltd with the intent to coerce the company into allowing the union's shop steward to attend site inductions.

The primary legal issue for the court to decide was whether the penalty agreed upon by the parties was neither manifestly excessive nor manifestly inadequate, and therefore appropriate under the circumstances. The court considered the nature and circumstances of the conduct, the impact of the contravention, the First Respondent's admission of guilt, their cooperation in preparing the Statement of Agreed Facts, and the need for general and specific deterrence. Both parties had submitted their considerations and agreed on a penalty of $10,000.

The court found that the agreed penalty was within the permissible range and was neither manifestly excessive nor manifestly inadequate. The court accepted that the Second Respondent's actions were unacceptable, but also noted the cooperation of the parties in preparing the Statement of Agreed Facts and avoiding a contested hearing. The court found that the penalty was appropriate in the circumstances, taking into account the First Respondent's prior convictions and the need for general deterrence.

The court declared that the First Respondent contravened section 348 of the Fair Work Act 2009 by the conduct of its employee, Derek Christopher, who threatened with assault and repeatedly abused with obscene language Hooker Cockram Pty Ltd's site manager, Mr Paul Quinn, with the intent to coerce the company into complying with its request that its shop steward be permitted to attend site inductions. The court ordered that a penalty of $10,000 be imposed on the First Respondent, to be paid into the Consolidated Revenue Fund of the Commonwealth on or before 13 March 2013. The application was otherwise discontinued by consent, and there was no order as to costs.