Radisich v McDonald

Case [2012] FMCA 919

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RADISICH v MCDONALD & ANOR [2012] FMCA 919
INDUSTRIAL LAW – Building and construction industry – application for civil penalties – agreed contraventions – agreed statement of facts – penalties – factors for consideration.
Building and Construction Industry Improvement Act 2005 (Cth), ss.3(1) and (2), 38, 43, 44, 49(2)
Crimes Act 1914 (Cth), ss.4(1), 4AA(1)
Criminal Code Act 1913 (WA), s.7
Criminal Code (WA), s.70A
Industrial Relations Act 1979 (WA)
Workplace Relations Act 1996 (Cth), ss.3(1), 3(j), 778, 790(1), 807, 826

Attorney-General v Tichy (1982) 30 SASR 84
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 810
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No. 2) (2010) 199 IR 373; [2010] FCA 977
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36
Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247
Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No. 2) [2007] FCA 11
Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd & Ors (No. 2) (2005) 215 ALR 281; [2005] FCA 254
Australian Federation of Air Pilots v Skywest Airlines Pty Ltd (1996) 70 IR 284
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8
Cahill v Construction, Forestry, Mining and Energy Union (No. 4) (2009) 189 IR 304; [2009] FCA 1040
Construction, Forestry, Mining and Energy UnionvAustral Bricks (Qld) Pty Ltd (2009) 178 IR 470; [2009] FMCA 143
Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231
Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56
Cozadinos v Construction, Forestry, Mining and Energy Union (No. 2) (2009) 183 IR 406; [2009] FMCA 272

Cruse v Construction, Forestry, Mining and Energy Union (No. 2) [2008] FCA 1637

Cruse v Multiplex Limited (2009) 182 IR 60; [2009] FMCA 236
Department of Public Prosecutions v Gordon (1994) 71 A Crim R 459
Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145; [2009] FCAFC 120
Fair Work Ombudsman v Industrial Roadpavers (WA) Pty Ltd (2010) 194 IR 436; [2010] FMCA 204
Finance Sector Union of Australia v Commonwealth Bank of Australia & Anor (2005) 224 ALR 467; [2005] FCA 1847
Gregor v CFMEU & Anor [2009] FMCA 1266
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FMCA 1248
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337; [2008] FMCA 1392

Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428

Ponzio v B & P Caelli Constructions Pty Ltd and Ors (2007) 158 FCR 543; [2007] FCAFC 65

Secretary,…

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Details
AGLC
RADISICH v MCDONALD & ANOR [2012] FMCA 919
Case
[2012] FMCA 919
Decision Date

CaseChat Overview and Summary

Radisich v McDonald was a legal dispute involving the applicant, Radisich, and two respondents. The applicant sought penalties for contraventions of two federal statutes, the Workplace Relations Act 1996 (Cth) and the Building and Construction Industry Improvement Act 2005 (Cth), by the respondents. The Federal Court of Australia was the court that heard the case.

The central legal issues the court had to decide were whether the respondents had indeed contravened the specified sections of the mentioned Acts and, if so, what the appropriate penalties should be. The court had to determine whether the contraventions were deliberate and whether the penalties imposed were commensurate with the severity of the breaches.

The court found that the respondents had indeed contravened the specified sections of the Acts. It held that the contraventions were deliberate and severe, justifying the imposition of penalties. The court ordered that the first respondent pay $1,980 for the contravention of section 790(1) of the Workplace Relations Act 1996 (Cth) and $4,400 for the contravention of section 38 of the Building and Construction Industry Improvement Act 2005 (Cth). The second respondent was ordered to pay $6,600 for the contravention of section 790(1) of the Workplace Relations Act 1996 (Cth) and $22,000 for the contravention of section 38 of the Building and Construction Industry Improvement Act 2005 (Cth). The penalties were to be paid to the Commonwealth Consolidated Revenue by 5 November 2012. The respondents were also jointly and severally liable to pay the applicant’s costs in the sum of $15,000 by the same date.

Orders

Orders of the court

2.

(a) the first respondent pay a penalty of:

(i) $1,980 in respect of the contravention of s.790(1) of the Workplace Relations Act 1996 (Cth); and

(ii) $4,400 in respect of the contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth); and

(b) the second respondent pay a penalty of:

(i) $6,600 in respect of the contravention of s.790(1) of the Workplace Relations Act 1996 (Cth); and

(ii) $22,000 in respect of the contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth);

(c) each of the above penalties be paid to Commonwealth Consolidated Revenue by 5 November 2012; and

(d) the respondents be jointly and severally liable to pay the applicant’s costs in the sum of $15,000 by 5 November 2012.

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

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