Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Appeal)
Citation: [2023] FCAFC 63
At a glance
- Penalty
- $170,000
What happened
Union representatives engaged in unlawful industrial action at a construction site for Kiama Aged Care Centre on 27-28 November 2018. Site representatives refused to undertake mandatory inductions and entered the worksite unaccompanied without induction, violating building industry entry requirements. A primary judge imposed total penalties of $170,000 on the union and penalties on the officials involved for breaching s.500 of the Fair Work Act.
What was decided
The Full Court of Appeal allowed the union's appeal regarding penalty methodology. The primary judge had applied a proportionality principle when setting penalties, which the High Court had subsequently rejected. The Full Court set aside the original penalty orders and remitted the case to the primary judge for reconsideration according to law, directing that penalties be determined without reference to proportionality. The Court emphasized that civil penalties should aim at deterrence, not retribution.
What it means for employers
Employers should ensure worksites in the building and construction industry maintain proper induction and entry requirements. Penalties for union breach of entry permit requirements can be substantial, though the precise amount will depend on deterrence principles rather than proportionality to the contravention. Documentation of entry violations is important for enforcement.
What it means for employees
Site entry requirements and induction procedures for construction work are legally mandated. Union officials who breach these requirements may face substantial civil penalties. Employees should not enter restricted areas without proper authorization and induction, as union misconduct may result in penalties payable by the union but affecting employee protections.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2023/2023fcafc0063Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections