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

In the Federal Circuit and Family Court of Australia, the Fair Work Ombudsman (FWO) brought proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and one of its officials, Mr Tzimas, for contraventions of the Fair Work Act 2009 (Cth). The proceedings centred around two admitted acts of physical aggression by Mr Tzimas towards a site manager, Mr Kee, while exercising his rights under the Act. The CFMMEU, as Mr Tzimas' employer, was held liable for his actions under the Act. The FWO sought declaratory relief and pecuniary penalties against both Mr Tzimas and the CFMMEU, arguing that the penalties should be set at a level that would serve as a strong deterrent against future contraventions.

The Court was required to determine the appropriate level of penalty for each respondent. It needed to consider factors such as the nature and seriousness of the contraventions, the level of cooperation and contrition shown by the respondents, and the financial capacity of the CFMMEU. The Court also had to decide whether a personal payment order should be imposed on Mr Tzimas, requiring him to personally contribute to the penalty. The Court's discretion in determining the penalties was broad, guided by the principles of general and specific deterrence, as well as the totality of the penalties imposed.

The Court concluded that the conduct of both Mr Tzimas and the CFMMEU was objectively serious, reflecting a disregard for the legal framework intended to balance the rights of union officials with the rights of employers and site managers. While Mr Tzimas had expressed regret and had participated in some training, the Court found that his previous history of similar contraventions warranted a penalty that served as a specific deterrent. The Court also noted the CFMMEU's extensive history of contraventions, which indicated a need for general deterrence. The Court determined that the penalties proposed by the FWO were excessive, as they would essentially double the punishment for each contravention. Instead, the Court imposed penalties that were sufficient to deter future contraventions without being disproportionate. For Mr Tzimas, the penalty was set at $10,500, and for the CFMMEU, it was set at $62,000. Additionally, the Court ordered that Mr Tzimas personally pay 30% of his penalty, reflecting his individual responsibility for the contraventions.

The Court found that the contravening conduct was not only serious but also indicative of a broader pattern of defiance against the Act by both Mr Tzimas and the CFMMEU. The Court emphasised the importance of maintaining the integrity of the legal framework governing union activities on private premises. The penalties, while significant, were deemed necessary to ensure compliance with the law and to uphold the rights of all parties involved in workplace safety and industrial relations. The Court also highlighted the need for personal accountability, particularly given Mr Tzimas' history of similar misconduct.

The Court made the following orders: The CFMMEU and Mr Tzimas were to pay pecuniary penalties of $62,000 and $10,500 respectively. Mr Tzimas was to personally pay 30% of his penalty, amounting to $3,150. The Court did not order any costs against the respondents.