Win delivers significant reduction in fines for CFMMEU after successful appeal

Win delivers significant reduction in fines for CFMMEU after successful appeal

In May 2021, the then Australian Building and Construction Commission (‘ABCC’) issued proceedings against the CFMMEU and two of its officials for breach of right of entry laws. In February 2022, the Federal Circuit Court ordered penalties on the union and its officials by way of fines. On appeal, it was argued that these fines were manifestly excessive. The appeal court agreed, resulting in a reduction in fines by a total of over $54,000.

The appeal

Hall Payne was engaged by the CFMMEU and the two officials in an appeal against the penalty judgment of the Federal Circuit Court, which was delivered on 3 February 2022.

At first instance, our clients were fined:

  • CFMMEU - $119,880
  • First official - $7,992; and
  • Second official - $10,656.

Our appeal was filed on 18 February 2022 and came before the appeal court for hearing on 12 September 2022. On appeal (CFMEU v Fair Work Ombudsman [2023] FCA 72), we argued that the penalties imposed were manifestly excessive, and the Federal Court agreed.

The effect of the successful appeal is that the penalties that were imposed upon our clients were reduced by a total of $54,608. This amount was then refunded to our clients by the Commonwealth.

Errors conceded by ABCC (now Fair Work Ombudsman)

Partway through the hearing, the respondent (then the Australian Building and Construction Commission, now the Fair Work Ombudsman), belatedly conceded three grounds of appeal.

As a result, the court went about re-determining the correct penalties to be imposed upon our clients in place of the incorrect ones.

The errors which were conceded were as follows:

  1. The primary judge failed to take into account the absence of loss or other consequences as a result of the contraventions.
  2. The primary judge wrongly took into account, as circumstances of aggravation, certain matters which should not have been relied upon for this purpose.
  3. The primary judge failed to take into account a clearly articulated argument that since the second official had ceased to be a permit holder, there was a diminished need for specific deterrence.

Appeal court re-determines more appropriate penalties

Once the conceded errors had been accepted by the appeal court, the matter moved on to an orthodox process of re-determining more appropriate penalties. In the process, the appeal court analysed the authorities relevant to the penalty setting exercise, including the High Court decision in Pattinson. Specifically, the appeal court examined whether and in what circumstances a penalty at or approaching the maximum should be imposed on a contravener with a long history of contraventions. Importantly, the court accepted our arguments in this regard and did not impose anywhere near the maximum penalty on any of our clients. In doing so the appeal court rejected the contrary arguments of the ABCC.

Key takeaways

Parties to civil penalty proceedings should carefully scrutinise any penalty judgment to discern whether they contain any error, particularly given the confusion created by the recent decision of the High Court in Pattinson.

Hall Payne Lawyers’ award-winning employment law team can assist in relation to any potential penalty appeal.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114

  This article relates to Australian law; either at a State or Federal level.

The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.

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