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Radisich v Molina and Ors (No.3)

Radisich v Molina and Ors (No.3)

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Case Copied 25 May 2012 46 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

RADISICH v MOLINA & ORS (No.3)

[2012] FMCA 419

INDUSTRIAL LAW – Civil penalty proceedings – false or misleading statements about membership – principles and considerations relevant to penalty.

Evidence Act 1995 (Cth), s.38
Workplace Relations Act 1996 (Cth), ss.3(j), 289P(2), 298SC(c), 778, 779, 789(1)(a) and (2), 790, 807(1)(a)

A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union
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 ABB Transmission & Distribution Limited [2001] ATPR 41-815; [2001] FCA 383
Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd(No.2) [2007] FCA 11

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329; [2007] FCAFC 18
Construction, Forestry, Mining and Energy Unionv Austral 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; [1999] FMCA 1714
CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228; [2001] FCA 1364
Cruse v Construction, Forestry, Mining and Energy Union (No.2) [2008] FCA 1637

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 v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847
Hadgkiss v Construction, Forestry, Mining and Energy Union (2007) 162 IR 385; [2007] FCA 524
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375; [2006] WASC 317
Liquor, Hospitality and Miscellaneous Union v Cuddles Management Pty Ltd (No.2) (2009) 188 IR 435; [2009] FMCA 746
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
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
Ponzio v B & P Caelli Constructions Pty Ltd and Ors (2007) 158 FCR 543; [2007] FCAFC 65
Radisich v Molina & Ors [2009] FMCA 1121
Radisich v Molina & Ors (No. 2) [2011] FMCA 66
Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61; [2008] FCA 1426
Temple v Powell (2008) 169 FCR 169; [2008] FCA 714
Williams v Construction, Forestry, Mining and Energy Union (No.2) (2009) 182 IR 327; [2009] FCA 548
Williams v Macmahon Mining Services Pty Ltd(No.3) (2010) 195 IR 161; [2010] FMCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 419
Decision Date: 25 May 2012

CaseChat Overview and Summary

In Radisich v Molina & Ors (No.3), the Federal Magistrates Court was asked to impose pecuniary penalties on the respondents, Walter Vinicio Molina, the Construction, Forestry, Mining & Energy Union of Workers, and the Construction, Forestry, Mining & Energy Union, for contraventions of s.790(1)(a) of the Workplace Relations Act 1996 (Cth). The respondents had been found in a prior decision, Radisich v Molina & Ors (No.2), to have contravened the section by making false or misleading statements about workers' obligations to join the Union. The Court considered various factors relevant to the assessment of penalty, including the nature and extent of the conduct, the circumstances in which it took place, the consequences of the conduct, and the objects of the relevant legislation. The Court found that the conduct in question, while a contravention of the law, was at the lower end of the spectrum of seriousness for such a contravention. It was limited in scope and effect, devoid of aggression, and made during a relaxed but robust lunchtime debate at the Site Sheds. The Court concluded that a penalty of 10% of the maximum was appropriate for Mr Molina, as he was a first-time contravener in respect of whom there was no need for specific deterrence. The penalty for the Construction, Forestry, Mining & Energy Union of Workers was to be less than that for the Construction, Forestry, Mining & Energy Union, as it was a first-time contravener but one in respect of whom there was a need for specific deterrence. The Court ordered that Mr Molina must pay a penalty of $660, the Construction, Forestry, Mining & Energy Union of Workers must pay a penalty of $3960, and the Construction, Forestry, Mining & Energy Union must pay a penalty of $4620. The penalties must be paid to the Commonwealth Consolidated Revenue Fund by 22 June 2012.

Orders