Fair Work Ombudsman v Brook

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Brook [2024] FCA 262   

File number:

SAD 43 of 2022

Judgment of:

SNADEN J

Date of judgment:

18 March 2024

Date of publication of reasons:

20 March 2024

Catchwords:

INDUSTRIAL LAW – right of entry – permit holder exercising rights contravened ss 499 and 500 of the Fair Work Act 2009 (Cth) – agreed contraventions – agreed penalty ranges – determination of appropriate penalties – civil double jeopardy – analysis of the nature, gravity, character and seriousness of the contraventions – significance of union’s history of contravening conduct – significance of corrective action – penalties imposed – appropriateness of declaratory relief

Legislation:

Fair Work Act 2009 (Cth) ss 499, 500, 539, 545, 550, 556, 570, 793

Cases cited:

Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393

Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 281 FCR 365

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161

Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934

Division:

Fair Work Division

Registry:

South Australia

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

33

Date of hearing:

18 March 2024

Counsel for the Applicant:

Mr M Felman KC with Mr A Crocker

Solicitor for the Applicant:

MinterEllison

Counsel for the Respondents:

Mr S Blewett

Solicitor for the Respondents:

CFMEU

ORDERS

SAD 43 of 2022

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

TRAVIS ALTON BROOK

First Respondent

CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION

Second Respondent

ORDER MADE BY:	SNADEN J
DATE OF ORDER:	18 MARCH 2024

THE COURT ORDERS THAT:

1.The first respondent pay a pecuniary penalty totalling $4,500.00.

2.The second respondent pay a pecuniary penalty totalling $40,000.00.

3.The penalties referred to in orders 1 to 2 above be paid to the Commonwealth within 28 days.

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

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

SNADEN J:

1. The following reasons were given ex tempore at the conclusion of a brief hearing that took place in this matter on Monday, 18 March 2024.  At that hearing (and by the written submissions furnished ahead of it), it emerged that there were few, if any, issues of fact or principle that were materially in dispute; and the relief that each side proposed for the court’s consideration differed only by modest sums.  Given that substantial level of agreement—and notwithstanding that its reasons for doing so might not address all of the issues that were the subject of submissions quite to the same level of detail sometimes offered by this court’s civil penalty jurisprudence—the court resolved to determine the application immediately.

2. At approximately 7:30am on Wednesday, 15 December 2021, the first respondent, Mr Brook, attended upon a construction site that was then located at…