ABCC’s “double jeopardy” hounding of union official beaten on appeal

15 November 2019
The Australian Building and Construction Commission’s overzealous approach caused it to seek double penalties against a union official for the same worksite misdemeanour.

The Federal Court has significantly downgraded fines imposed on the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and one of its organisers who were fined twice for the same conduct.

A CFMEU organiser was fined $22,000 for using insulting language and climbing a crane while inspecting a worksite in Devonport in June 2017.

The ABCC alleged the organiser breached the two sections of Fair Work Act by refusing to comply with a direction from a site manager and ‘acting improperly’ on a building site in the Tasmanian city.

The Federal Court initially found for the ABCC and awarded $22,000 in penalties against the organiser and $115,000 against the CFMEU.

Acting on behalf of the organiser and the CFMEU, Maurice Blackburn Lawyers appealed the decision, and argued they had been punished twice for the same thing. The ABCC opposed the appeal, arguing two penalties could be imposed.

The Full Federal Court upheld the CFMEU’s appeal, finding that the organiser and the CFMEU had been punished twice for the same conduct and substantially reduced the fines awarded.

“The idea that there should not be double jeopardy is a value that is deeply ingrained in Australian law,’” three judges of the Court said.

Maurice Blackburn Principal lawyer Daniel Victory said the ABCC should be concentrating on dodgy bosses with unsafe workplaces rather than wasting money trying to sue union officials twice for the same conduct.

“The approach of the ABCC in this case is at odds with the approach of the Fair Work Ombudsman in not prosecuting Woolworths for over $300 million worth of underpayments. Meanwhile the union organiser in this case was sued for bad language. It’s symptomatic of the repressive and anti-democratic laws governing unions in this country,” Mr Victory said.

“It is well understood in both legal circles and the wider community that people should not be punished twice for the same conduct. I hope the ABCC now understands that as well,” Mr Victory said.

“The Court has sent a clear message to the ABCC that it will not impose double punishment for the same conduct like the ABCC sought against the organiser in this case.”

“The Morrison Government should take stock of this decision too.  The Government should stop trying to introduce the draconian Ensuring Integrity Bill which is designed to punish unions and instead focus on the appalling behaviour of the big banks.”     

Media inquiries:  Paddy Murphy at Maurice Blackburn Lawyers on 0490 297 391

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