FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Blakeley [2023] FCA 1121
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- AGLC
- Fair Work Ombudsman v Blakeley [2023] FCA 1121
- Case
- [2023] FCA 1121
- Decision Date
CaseChat Overview and Summary
The court acknowledged that the number of contraventions, 51 out of 196 entries, was significant and highlighted the necessity for specific deterrence in the context of the CFMMEU. The court considered the respondents' history of contraventions and the penalties imposed in previous cases, noting that the penalties did not appear to have a deterrent effect. The court also noted the late admission of liability by the respondents, which occurred after substantial discovery had been provided and evidence filed. The court determined that the admission of liability did not demonstrate contrition or remorse and thus did not warrant a substantial discount on the penalty.
The court concluded that the appropriate penalties should reflect the gravity of the contraventions and the need for specific deterrence. The first respondent was ordered to pay a pecuniary penalty of $7,500, the second respondent $4,500, and the third respondent $50,000. These penalties were to be paid to the Commonwealth of Australia within 28 days of the date of the orders. The court did not impose non-indemnity orders on the respondents.
Orders
Orders of the court
1. The first respondent pay one pecuniary penalty of $7,500.
2. The second respondent pay one pecuniary penalty of $4,500.
3. The third respondent pay one pecuniary penalty of $50,000.
4. The pecuniary penalties referred to in Orders 1 to 3 above be paid to the Commonwealth of Australia within 28 days of the date of these Orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The CFMMEU pointed to the training conducted by a former Deputy President to show that the CFMMEU was committed to complying with the Act. The training in question focused on the powers of permit holders under s 118 of the WHS Act, including the obligations as to appropriate conduct and how to respond to safety issues. The training only occurred three weeks after this matter was originally set down for hearing and was only organised once the CFMMEU admitted liability. The respondents filed an affidavit by the former Deputy President which deposed to his having been instructed to organise the training following the admissions in this matter.Co-operation with the authorities – admissions It cannot be said that the admission of the respondents came at an early stage in these proceedings. By joint communication to Chambers on 12 August 2022, the parties indicated that they had resolved the issues in dispute. Consent orders were made on 15 August 2022 vacating the hearing dates of 17, 18 and 19 August 2022 and as to programming for the penalty hearing. By 12 August 2022, the parties had already provided discovery, filed evidence and opening submissions. The admissions were made after the applicant amended the statement of claim and did not press certain matters. The admissions avoided the expense of a trial for both parties and “freed up” court time. In Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70 (Mornington Inn), Gyles, Stone and Buchanan JJ held:74It is important to note that it is not a sufficient basis for a discount that the plea has saved the cost of a contested hearing – that would discriminate against a person who exercised a right to contest the allegations. A discount may be justified, however, if the plea is properly to be seen as willingness to facilitate the course of justice. Remorse and an acceptance of responsibility also merit consideration where they are shown.75A conventional consideration in assessing a discount in a criminal case for a plea of guilty is the stage in the proceedings at which the plea is entered. Normally, the maximum discount for this factor, sometimes thought to be 25%, is reserved for a plea made at the first reasonable opportunity although, as was indicated in Cameron (at [23] – [24]) there is no obligation to make an early plea to a charge which wrongly particularises the substance to which the charge relates.76… Nevertheless, in our view, it should be accepted, for the same reasons as given in Cameron, that a discount should not be available simply because a respondent has spared the community the cost of a contested trial. Rather, the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice.77A respondent who admits liability will spare itself the unnecessary cost of a contested hearing. Its motivation, therefore, should not be regarded as unduly altruistic ... It is impossible to resist a conclusion that the appellant was finally moved by its assessment of the strength of the case against it rather than any desire to facilitate the course of justice.78The primary judge found moreover, that there was no evidence of contrition or remorse. He said: ‘Frank admissions of wrongdoing, and apologies to the employees who have been disgracefully treated, may have operated in mitigation. None were forthcoming’. In the circumstances of the present case, the admission of liability two weeks before the trial was not evidence of contrition or remorse or, except in the most formal of senses, an indication of acceptance of wrongdoing. It would have been open to the primary judge, in our view, to refuse any discount for the admission of liability. There is no basis, therefore, upon which to complain about the allowance of a ‘modest’ discount of 10%. It was more than ample in the circumstances of this case.(italics in original)