Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union

The Fair Work Ombudsman took proceedings against the Construction, Forestry, Maritime, Mining and Energy Union and seven of its officials for contraventions of section 500 of the Fair Work Act 2009 (Cth) before the Federal Court of Australia. The primary issue before the court was the determination of appropriate pecuniary penalties for the contraventions of the Fair Work Act. The court also had to decide whether to impose personal payment orders on some of the respondents, taking into account their previous contraventions of industrial legislation. The court considered the proportionality of the penalty to the contravening conduct, the need for general and specific deterrence, and the principle of totality in determining the appropriate penalties.

The court found that the imposition of personal payment orders on the second and fourth respondents was appropriate to deter further contraventions by them, given their history of previous contraventions. However, the court did not consider it necessary to impose personal payment orders on the third, fifth, sixth and seventh respondents, who had either limited or no history of prior contraventions. The court concluded that the contraventions did not occur as part of a single course of conduct, as they happened on separate dates. Considering the principles of totality and the total penalties to be imposed on each respondent, the court decided on the following penalties: $275,000 for the first respondent, $24,000 for the second respondent, $10,000 for the third respondent, $12,000 for the fourth respondent, $3,000 for the fifth respondent, $2,000 for the sixth respondent, and $2,000 for the seventh respondent. The court also ordered that the second and fourth respondents must personally pay their penalties and must not seek or receive any financial benefit from the first respondent in relation to the penalties.

The court's decision was based on the principle that the purpose of imposing civil penalties under the Fair Work Act is primarily to promote public interest in compliance with the Act through deterrence of further contraventions. The court aimed to strike a balance between oppressive severity and the need for deterrence, considering the nature and seriousness of the contraventions. The court found that the penalties imposed were appropriate to achieve the objectives of deterrence and to maintain a reasonable relationship between the theoretical maximum penalty and the final penalty imposed.