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

The Fair Work Ombudsman brought an action against the Construction, Forestry, Maritime, Mining and Energy Union (MUA) for contraventions of the Fair Work Act 2009 (Cth), specifically section 417(1) which prohibits certain forms of unlawful industrial action. The Union had taken action that was considered unlawful and sought compensation for the losses incurred as a result of that action. The case was heard by the Fair Work Commission (FWC), which had to determine the appropriate penalty for the contravention and whether compensation was appropriate under section 545(1) of the Act.

The legal issues before the FWC were whether the conduct of the employer and the purpose of the industrial action were relevant to determining the penalty and compensation. The Union argued that the employer's actions and the purpose of the industrial action should be considered when determining whether compensation was appropriate. The FWC had to consider whether the employer's desire for compensation was relevant to the making of a compensation order.

The FWC held that the conduct of the employer and the purpose of the industrial action were relevant to determining the penalty and compensation. However, in the circumstances of this case, the considerations weighed so heavily against making any order for compensation that no such order should be made. The FWC found that the Union had contravened section 417(1) of the Fair Work Act and ordered the Union to pay a pecuniary penalty of $38,000 within 28 days. The FWC did not consider it necessary to determine whether the causal connection between the industrial action and the loss was sufficient to satisfy the requirements of section 545(2)(b) in relation to causation, as the considerations against making any order for compensation were so significant.