Legal Research
Cases
Fair Work Ombudsman v Australian Workers' Union

Fair Work Ombudsman v Australian Workers' Union

Link copied

Case Copied 7 February 2020 45 min read

Contents

On this page

FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Australian Workers’ Union [2020] FCA 60

File number: VID 266 of 2016

Judge: SNADEN J

Date of judgment: 7 February 2020

Catchwords: INDUSTRIAL LAW – adverse action – pecuniary penalties – agreed contraventions – charges laid by employee organisation against members for failing to engage in industrial action – failure to withdraw charges for prolonged period – where penalty unit increased during the course of contravening conduct – civil double jeopardy – application of “course of conduct” and “totality” principles – appropriateness of declaratory relief – no declaratory relief

Legislation:
Crimes Act 1914 (Cth) s 4AA

Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth) Sch 1

Fair Work (Registered Organisations) Act 2009 (Cth)

Fair Work Act 2009 (Cth) Pts 2-4, 3-1, ss 12, 336, 340, 341, 342, 346, 347, 363, 408, 539, 545, 546, 556, 557, 570, 793

Cases cited:
A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466

Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68

Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540

Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640

Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560

Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201

Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557

Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68

Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99

Markarian v The Queen (2005) 228 CLR 357

Registered Organisations Commissioner v Australian Nursing and Midwifery Federation (No 2) [2018] FCA 2004

Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53

Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249

Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076

Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018)

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.

Keep reading for free

Create a free CaseChat account to read Fair Work Ombudsman v Australian Workers' Union and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCA 60
Decision Date: 7 February 2020

CaseChat Overview and Summary

The Fair Work Ombudsman filed a case against the Australian Workers' Union (AWU), citing breaches of the Fair Work Act 2009 (FW Act) relating to adverse action and pecuniary penalties. The AWU faced charges for failing to withdraw charges against its members for not participating in industrial action, and for the extended duration these charges remained in place. The case was heard in the Federal Court of Australia, where the central legal issues involved the interpretation of certain provisions of the FW Act, particularly regarding the application of civil double jeopardy, the "course of conduct" principle, and the "totality" principle. Additionally, the court had to determine the appropriateness of granting declaratory relief in light of these issues.

The court meticulously examined the legislative framework and case law to understand the implications of the penalty unit changes during the period of contravening conduct and the principles of civil double jeopardy. The AWU argued against the charges, asserting that the principles in question precluded the imposition of penalties. However, the court found that these principles did not apply to bar the penalties. It concluded that the charges laid against the AWU members were valid, and the union's actions constituted breaches of the FW Act. The court further deliberated on the appropriateness of declaratory relief, ultimately deciding against it, given the specific circumstances and the established penalties.

The Federal Court ordered the AWU to pay pecuniary penalties totalling $18,000.00, with each penalty set at $9,000.00 for the two contraventions of section 346 of the FW Act. The penalties were to be paid to the Commonwealth within 28 days. The court did not order costs as it was aware of the implications under section 570(1) of the FW Act, which provides that costs should not be awarded in such cases. The decision underscores the importance of adhering to industrial action guidelines and the consequences of contravening the provisions of the FW Act.

Orders

Orders of the court

1. The respondent pay pecuniary penalties totalling $18,000.00.

2. The penalties referred to above be paid to the Commonwealth within 28 days.

3. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that no declaratory relief will be granted.CONCLUSION Pursuant to s 546(1) of the FW Act, the court will order that the AWU pay pecuniary penalties totalling $18,000.00, comprising of two penalties of $9,000.00 (one for each of the Agreed Contraventions that are constituted by its breaches of s 346 of the FW Act). Those penalties will be made payable to the Commonwealth within 28 days. Presumably conscious of the effect of s 570(1) of the FW Act, the Ombudsman does not seek an order for costs and none will be made.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	VID 266 of 2016
Judge:	SNADEN J
Date of judgment:	7 February 2020
Catchwords:	INDUSTRIAL LAW – adverse action – pecuniary penalties – agreed contraventions – charges laid by employee organisation against members for failing to engage in industrial action – failure to withdraw charges for prolonged period – where penalty unit increased during the course of contravening conduct – civil double jeopardy – application of “course of conduct” and “totality” principles – appropriateness of declaratory relief – no declaratory relief
Legislation:	Crimes Act 1914 (Cth) s 4AA Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth) Sch 1 Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work Act 2009 (Cth) Pts 2-4, 3-1, ss 12, 336, 340, 341, 342, 346, 347, 363, 408, 539, 545, 546, 556, 557, 570, 793
Cases cited:	A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540 Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99 Markarian v The Queen (2005) 228 CLR 357 Registered Organisations Commissioner v Australian Nursing and Midwifery Federation (No 2) [2018] FCA 2004 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018)