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

The Fair Work Ombudsman sought to recover pecuniary penalties against the Construction, Forestry, Maritime, Mining and Energy Union for its industrial action. The primary judge found that the union's actions amounted to a single course of conduct and imposed a penalty of $38,000, to which the FWO appealed. The Full Court considered the proper interpretation of section 557(3) of the Fair Work Act, which provides that an organisation is not to be penalised for contraventions arising from the same course of conduct where a penalty has already been imposed. The court held that the provision did not apply because the contraventions for which the union had already been penalised did not relate to the same enterprise agreement as the contraventions in question.

The primary judge had found that the union's actions amounted to a single course of conduct, which was upheld by the Full Court. The court noted that the common law principle that multiple contraventions arising from the same course of conduct may be penalised as a single contravention was not necessarily applicable under section 557(1) of the Act, which provides that multiple contraventions arising from a course of conduct are taken to constitute a single contravention for which only a single penalty can be imposed. However, the court found that if section 557(1) did not apply, the common law course of conduct principle would apply, and the court would be left with the instruction of section 546(1) to impose a penalty that it considers appropriate. The court held that where there are multiple contraventions, assessment of an appropriate penalty must take into account whether the factual or legal circumstances overlap to an extent that there is a risk of multiple punishments for what is essentially the same contravention.

The Full Court remitted the matter back to the primary judge to determine the penalty. The primary judge imposed a penalty of $38,000, which was upheld by the Full Court. The union was ordered to pay the penalty to the Commonwealth within 28 days of the date of the orders.