Fair Work Ombudsman v Australian Workers' Union

• Jurisdiction: Australia Federal only
• Judge: SNADEN J
• Judgment Date: 07 February 2020
• Neutral Citation: [2020] FCA 60
• Date: 07 February 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Australian Workers’ Union [2020] FCA 60

File number:	VID 266 of 2016
Judge:	SNADEN J
Date of judgment:	7 February 2020
Catchwords:	INDUSTRIAL LAW – adverse action – pecuniary penalties – agreed contraventions – charges laid by employee organisation against members for failing to engage in industrial action – failure to withdraw charges for prolonged period – where penalty unit increased during the course of contravening conduct – civil double jeopardy – application of “course of conduct” and “totality” principles – appropriateness of declaratory relief – no declaratory relief
Legislation:	Crimes Act 1914 (Cth) s 4AA Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth) Sch 1 Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work Act 2009 (Cth) Pts 2-4, 3-1, ss 12, 336, 340, 341, 342, 346, 347, 363, 408, 539, 545, 546, 556, 557, 570, 793
Cases cited:	A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540 Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99 Markarian v The Queen (2005) 228 CLR 357 Registered Organisations Commissioner v Australian Nursing and Midwifery Federation (No 2) [2018] FCA 2004 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 363 ALR 464 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 Warramunda Village v Pryde (2001) 105 FCR 437 Wong v The Queen (2001) 207 CLR 584
Date of hearing:	12 September 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	82
Counsel for the Applicant:	Ms K Eastman SC with Mr J C McKenna
Solicitor for the Applicant:	Fair Work Ombudsman
Counsel for the Respondent:	Ms E Levine
Solicitors for the Respondent:	20 April 2019 - 1 May 2019 – Maurice Blackburn Lawyers; From 2 May 2019 – Moray & Agnew

ORDERS

		VID 266 of 2016
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	AUSTRALIAN WORKERS' UNION Respondent

JUDGE:	SNADEN J
DATE OF ORDER:	7 FEBRUARY 2020

THE COURT ORDERS THAT:

1. The respondent pay pecuniary penalties totalling $18,000.00.

2. The penalties referred to above be paid to the Commonwealth within 28 days.

3. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1. The respondent (hereafter, the “AWU”) is a well-known trade union. All times material to this proceeding, it was incorporated—and operated subject to rules that had effect—under the Fair Work (Registered Organisations) Act 2009 (Cth).

2. Amongst others, the AWU represents (or at least in 2015, represented) employees employed by Orica Pty Ltd (hereafter, “Orica”) at its manufacturing plant in Ballarat Road, Deer Park (hereafter, the “Deer Park Site”). Between January and September of 2015, the conditions of employment pertaining to those employees were regulated by an enterprise agreement forged under Pt 2-4 of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”).

3. That enterprise agreement nominally expired on 30 June 2014. Between January and September 2015, the AWU and Orica engaged in negotiations over the terms of a replacement agreement. On or about 25 February 2015—and within the context of those negotiations—the AWU gave notice to Orica of its intention to organise, and the intention of its members at the Deer Park Site to engage in, various forms of protected industrial action (within the meaning attributed to that phrase by s 408 of the FW Act). Specifically, the notice contemplated that the AWU’s members at the Deer Park Site would engage in two-hour work stoppages at 5:00am, 7:00am and 3:00pm on Tuesday, 3 March 2015 (that action is referred to, collectively and hereafter, as the “AWU Industrial Action”).

4. For the most part, the AWU Industrial Action took place. However, not all of the AWU’s members at the Deer Park Site participated in it. Two in particular—it is not necessary to identify them by name (they will be referred to, collectively and hereafter, as the “Relevant Employees”)—decided not to.

5. The Relevant Employees’ choice not to participate in the AWU Industrial Action caught the attention of Mr Sam Wood, who, at the time, was an officer and employee of the AWU’s. By correspondence dated 6 March 2015 and addressed to the secretary of the AWU’s Victorian branch, Mr Ben Davis, Mr Wood petitioned for “charges” to be brought against the Relevant Employees under r 19(2) of the AWU’s rules. That rule relevantly provided as follows:

(2) Any member may charge any other member with:

…

(b) failing to comply with any resolution or direction lawfully passed or given under any Rule of the Union after having notice thereof; [or]

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(h) gross misbehaviour;

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6. On 16 March 2015, Mr...