Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3)

The case of Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) involved a dispute over the imposition of pecuniary penalties under the Fair Work Act 2009 (Cth). The Fair Work Ombudsman sought penalties against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and eight individual union members for contraventions related to entry onto a construction site without producing the required federal entry permits. The contraventions were found to be in breach of sections 494(1), 497, and 500 of the Fair Work Act. The primary legal issues before the court included the principles of deterrence, the nature of the respondents' belief regarding their right to enter the site, and the appropriateness of imposing suspended penalties.

The court considered the principles of general and specific deterrence, the course of conduct, and the totality principle in determining the penalties. It found that while the respondents held a mistaken but genuine belief about their rights under the Occupational Health and Safety (WHS) Act, this did not absolve them of their obligations under the Fair Work Act. The court noted that the contraventions did not cause tangible economic loss but acknowledged the need for deterrence. The penalties were calculated to balance the objectives of deterrence with the mitigating factors, including the respondents' mistaken belief and the lack of a coordinated campaign. The court ordered the CFMMEU to pay $85,000 and the individual respondents varying amounts between $3,500 and $30,000, to be paid within specified timeframes. Additionally, the court prohibited the individual respondents from seeking or receiving any financial benefit from the CFMMEU in relation to the penalties.