Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal)

In the matter of Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal), the Fair Work Ombudsman (FWO) appealed against the penalty order made by a single judge of the Federal Court, which was the outcome of proceedings concerning breaches of section 417(1) of the Fair Work Act 2009 (Cth). The union, Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), was found to have contravened this provision by organising and being involved in industrial action, leading to the imposition of a pecuniary penalty. The primary judge had rejected the FWO’s principal and alternative cases on penalty, ultimately ordering the CFMMEU to pay a penalty of $38,000.

The primary legal issue before the court was the interpretation of section 557(3) of the Fair Work Act in relation to the applicability of the course of conduct principle to the determination of pecuniary penalties. The FWO argued that section 557(3) should not exclude the application of the course of conduct principle when calculating penalties for multiple contraventions arising from a single course of conduct, while the CFMMEU contended that the section should be interpreted to exclude such principles entirely.

The court held that the primary judge's interpretation of section 557(3) was incorrect. The court found that the FWO's construction of the section, which permitted the exclusion of penalties for any future contravention of the same provision by the same person, was consistent with a purposive reading of the provision in its context. The court further held that the primary judge's decision to exclude the application of the course of conduct principle was flawed as it did not align with the plain meaning of section 557(3). Consequently, the appeal was allowed, the orders of the primary judge were set aside, and the matter was remitted to the primary judge to determine the issue of penalty afresh.

The final orders of the court were to allow the appeal, set aside the orders of the primary judge, and remit the matter back to the primary judge for reconsideration of the penalty issue in light of the court's findings.