Director, Fair Work Building Industry Inspectorate v CFMEU (FCAFC)
Federal Court of Australia (Full Court)
Justices Dowsett, Greenwood and Wigney
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2015] FCAFC 59 (1 May 2015)
Issue: penalties (agreed penalties)
CAUTION: The High Court granted special leave to appeal the Federal Court decision; subsequently the High Court overturned the decision of the Federal Court, finding that the Barbaro principles did not apply in relation to submission of agreed penalties in civil cases. See: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 (2015) ALR 476 (9 December 2015)
Issue: Agreed penalties
File: QUT257/2013
Hearing: 11-12 August 2014
Applicant: Director, Fair Work Building Industry Inspectorate
Respondents: Construction, Forestry, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Intervener: Commonwealth of Australia
Counsel for Applicant: Mr CJ Murdoch
Solicitor for Applicant: Norton Rose Fulbright
Counsel for Respondent: Mr E White
Solicitor for Respondents: Hall Payne Lawyers
Counsel for the Intervener: Mr J Gleeson SC and Mr T Begbie
Solicitor for the Intervener: Australian Government Solicitor
Counsel for the Contradictor: Mr C Moore SC and Ms D Forrester
The Court also permitted appearances by:
Public Interest Advocacy Centre (PIAC) and Australian Competition and Consumer Commission (ACCC)
Summary
On 1 May 2015 the Full Federal Court handed down its decision in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union.
The primary issue dealt with by the Court related to joint submissions as to pecuniary penalties. In Barbaro (Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323), the High Court held that in criminal sentencing proceedings, the prosecution should not nominate a sentencing result or range. In this case the Federal Court considered whether or not the decision in Barbaro should be applied regarding the penalties the parties had agreed. The Court concluded the reasoning in Barbaro should apply to this case and that therefore they should not have any regard to the figures agreed by the parties in relation to penalties, 'other than to the extent that the agreement demonstrates a degree of remorse and/or cooperation on the part of the respondent' (para 2).
Although this case did not involve the ACCC, the ACCC was permitted an appeareance in this case; the decision has implications for the common practice of the ACCC to submit agreed penalties after cooperation and negotiation with parties that are the subject of civil prosecutions under the CCA.
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59
Justices Dowsett, Greenwood and Wigney JJ (1 May 2015)
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