Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Appeal)

The Fair Work Ombudsman appealed against penalties imposed by the primary judge on the Construction, Forestry, Maritime, Mining and Energy Union (Union), Mr Danalis, and Mr Dimitriou for contraventions of the Fair Work Act 2009 (Cth). The Union and Mr Dimitriou cross-appealed against the penalties imposed on them. The penalties were imposed following findings of liability made by the primary judge, which found the respondents contravened sections 500 and 503 of the Fair Work Act 2009 (Cth). The Fair Work Ombudsman appealed on the basis that the primary judge failed to take into account the principle of proportionality in determining the appropriate penalty and made errors in assessing the culpability of the respondents. The Union and Mr Dimitriou cross-appealed on the basis that the primary judge erred in failing to take into account the principle of proportionality in determining the appropriate penalty. The court found that the primary judge did not err in taking into account the principle of proportionality in determining the appropriate penalty. However, the court found that the primary judge did err in failing to consider the principle of proportionality in determining the appropriate penalty for Mr Dimitriou and the Union. The court found that the penalties imposed on Mr Dimitriou and the Union were excessive and disproportionate to the contraventions of the Fair Work Act 2009 (Cth). The court set aside the orders imposing penalties on Mr Dimitriou and the Union and remitted the matter to the primary judge for reconsideration of the penalties to be imposed on them. The Fair Work Ombudsman's appeal against the penalty imposed on Mr Danalis was dismissed. The Union's and Mr Dimitriou's cross-appeals were allowed.