FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Rielly [2023] FCA 1144
File number: QUD 445 of 2021 Judgment of: THOMAS J Date of judgment: 26 September 2023 Catchwords: INDUSTRIAL LAW – pecuniary penalty – contravention of s 500 of the Fair Work Act 2009 (Cth) – where the Site Rules require all visitors to be accompanied – whether the first respondent was unaccompanied – meaning of “accompanied” – principles of pecuniary penalty – consideration of the appropriate pecuniary penalty – where non-indemnity order sought Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth)
Building and Construction Industry Improvement Act 2005 (Cth)
Fair Work Act 2009 (Cth)
Trade Practice Act 1974 (Cth)
Workplace Relations Act 1996 (Cth)
Work Health and Safety Act 2011 (Qld)
Work Health and Safety Regulation 2011 (Qld)
Cases cited: ABCC v CFMEU (Pacific Highway Upgrade Case) (No 3) [2022] FedCFamC2G 388
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3
Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13
Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470; [2017] FCAFC 89
Australian Building and Construction Commissioner v Rielly (No 2) [2021] FCCA 43
Australian Building and Construction Commissioner v Rielly (No 3) [2022] FedCFamC2G 1
Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72
Curran v Thomas Borthwicks & Sons (Pacific) Limited (1990) 26 FCR 241
Fair Work Ombudsman v Blakeley [2023] FCA 1121
Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847
Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076
Macquarie Dictionary (8th ed, Macquarie Dictionary Publishers, 2020)
Oxford English Dictionary (2nd ed, Oxford Press 1989)
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 106 Date of hearing: 11 July 2023 Counsel for the Applicant: Ms A Freeman Solicitor for the Applicant: K&L Gates Counsel for the First and Third Respondents: Mr CA Massy Solicitor for the First and Third Respondents: Hall Payne Lawyers ORDERS
QUD 445 of 2021 BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: DEAN RIELLY
First Respondent
PAUL FITZPATRICK
Second Respondent
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
Third Respondent
ORDER MADE BY:
THOMAS J
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- AGLC
- Fair Work Ombudsman v Rielly [2023] FCA 1144
- Case
- [2023] FCA 1144
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were primarily whether the first respondent was unaccompanied, the meaning of “accompanied” under the Site Rules, and the principles to be applied in determining the appropriate pecuniary penalty. The court also had to consider the co-operation with authorities and the deterrent effect of the penalty.
The court found that the first respondent was not unaccompanied as required by the Site Rules, and therefore, a contravention occurred. Regarding the meaning of “accompanied,” the court interpreted the term to mean that a visitor must be with a person who has authority to grant access to the site. The court acknowledged the late admissions made by the respondents but decided to allow a discount of approximately 10% for the utilitarian benefit of the admissions. Concerning deterrence, the court held that it must ensure an adequate connection between the circumstances of the contravention and the deterrence of future conduct. The court determined that the history of non-compliance with the law did not necessarily demonstrate a general policy of deliberate defiance of industrial laws, and therefore, the penalty should not be based on deterring all future contraventions. The court concluded that a specific penalty of $8,500 for the first respondent and $58,000 for the third respondent was appropriate.
The final orders were that the first respondent pay a pecuniary penalty of $8,500, the third respondent pay a pecuniary penalty of $58,000, and both penalties be paid to the Commonwealth of Australia within 28 days of the date of the orders.
Orders
Orders of the court
1. The first respondent pay one pecuniary penalty of $8,500.
2. The third respondent pay one pecuniary penalty of $58,000.
3. The pecuniary penalties referred to in Orders 1 and 2 above be paid to the Commonwealth of Australia within 28 days of the date of these Orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The first respondent was an official of the CFMMEU, but was not involved in conduct of the type targeted by this consideration, where senior officers “carefully devised and implemented” a scheme of contravention (Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847 at [27] (per Merkel J)).Co-operation with the authoritiesAdmissions The applicant acknowledged that the admissions came at a late stage due to negotiations between the parties as to the framework of the particularisation of the charge and that the admissions have utilitarian benefit by saving the Court time and money. However, the applicant submitted that the respondents should not get the benefit of early admissions, but are nevertheless entitled to a benefit for their admissions. The respondents submitted that the circumstances surrounding the admissions involved the proceedings against the second respondent being discontinued and many of the allegations no longer being pressed. The admissions did not come early in the proceedings. However, they followed significant amendments to the charges from the applicant. The admissions were not full admissions of all the conduct. Of course, the respondents were entitled to advance such an argument as they were advised and cannot be penalised for exercising that right. There is utilitarian value in the admissions and a discount of approximately 10% will be allowed to the first respondent.Deterrence The plurality in Pattinson referred to deterrence of further contravention of “offences of a like kind”. The respondents submitted that the first respondent is no longer able to contravene “offences of a like kind” and should be limited to contraventions under s 500 of the Act. Accordingly, there would be no need for specific deterrence. The applicant submitted that the Court should look at the history of non-compliance with the law which demonstrates a “history of contraventions as a whole” and that the Court should fix the appropriate penalty. There must be an adequate connection between the circumstances of the contravention and the deterrence of contravening conduct that may occur in the future. As Rangiah J said in Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72: 109.I accept the appellants’ submission that [in Pattinson] the plurality’s consideration of the penalties reasonably necessary to deter contraventions “of a like kind” proceeded by reference to contraventions of the Act premised on or flowing from the Union’s continued deployment of an unlawful “no ticket no start” policy. That was made clear at [61]. The plurality’s approach is consistent with the necessity for an adequate connection between the circumstances of the instant contravention and deterrence of contravening conduct that may occur in the future.110.The respondent has not attempted to demonstrate, either by reference to evidence or forensic analysis of the Union’s past contraventions, that the Union has a general policy of deliberate defiance of any or all or industrial laws whenever the Union considers that it is in its interests to do so, such that any and all future contraventions of industrial laws will necessarily fall within the description of, “future contraventions of a like kind”. Accordingly, I will not determine the appropriate penalty on the basis of what is reasonably necessary to deter the Union from engaging in deliberate contraventions of any and all industrial laws. It has not been demonstrated that all of the Unions’ past contraventions of industrial laws will necessarily be relevant to determining the appropriate penalties in the present case.