Draffin v Construction, Forestry, Mining and Energy Union

The case of Draffin v Construction, Forestry, Mining and Energy Union involved a dispute where the plaintiff alleged that the union had breached certain provisions of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) and the Workplace Relations Act 1996 (Cth) (WR Act). The primary legal issues before the court were to determine the appropriate penalties for the breaches of the BCII Act and the WR Act by the Union and certain individuals associated with the Union. The court had to consider various factors, including the nature and seriousness of the breaches, the conduct of the individuals involved, and the appropriate deterrence and corrective measures.

The court's reasoning involved a detailed analysis of the factors set out in previous case law, such as the totality principle, cooperation, minimum standards enforcement, deterrence, and the previous conduct of similar cases. The court compared the current breaches with those in the Stuart-Mahoney case, finding the breaches in the present case to be less severe. It also considered the penalty imposed on an individual, Walton, finding his conduct to be at least as serious as the Union’s. The court determined that imposing a penalty on the Union that exceeds the penalty on Walton would not be appropriate. It also took into account the non-profit nature of the Union, funded by its members. After evaluating all these factors, the court concluded that the appropriate penalty for the breach of s 43 of the BCII Act was $18,000, and a penalty of $2,000 for the breach of s 45 of the BCII Act. A penalty of $750 was imposed for the breach of s 298P of the WR Act.

The court made specific orders for the penalties to be paid into the Consolidated Revenue by 30 April 2009. Additionally, it declared that certain respondents had contravened specified sections of the BCII Act and the WR Act on 16 November 2005. Certain penalties were made wholly suspended for 12 months, contingent upon the respondents not breaching any provisions of the BCII Act within that period.