Recent Cases

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (13 April 2022) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)


Industrial law (Cth) – Pecuniary penalties – Determination of appropriate penalty – Where s 349(1) of Fair Work Act 2009 (Cth) (“Act”) relevantly provided that person must not knowingly or recklessly make false or misleading representation about another person’s obligation to engage in industrial activity – Where s 546 of Act empowered Federal Court of Australia to order person to pay pecuniary penalty that court considered “appropriate” in respect of contravention of civil remedy provision – Where first respondent union officer and second respondent union each contravened s 349(1) of Act twice – Where second respondent had longstanding history of contraventions of Act – Whether discretion under s 546 of Act constrained by notion of proportionality drawn from criminal law – Whether statutory maximum penalty for civil remedy provision may be imposed only for worst category of contravening conduct.

Words and phrases – “appropriate penalty”, “civil penalty regime”, “civil remedy provision”, “deterrence”, “discretion”, “maximum penalty”, “pecuniary penalty”, “proportionality”, “retribution”.