22 December 2020
The Full Court of the Federal Court of Australia has today delivered a judgment that varies the amount of civil penalties that the Communications, Electrical, Electronic, Energy, Information, Postal and Alliance Services Union (CEPU) has to pay for multiple contraventions of the Fair Work (Registered Organisations) Act 2009 (the RO Act).
In February 2020 the Court found that the CEPU contravened the RO Act on 86 occasions between March 2015 and May 2017 including:
on four occasions by failing to keep accurate lists of its officers and office holders; and
- on 82 occasions by failing to lodge notifications of changes about offices and office holders within the prescribed time, including on nine occasions in not notifying the changes prior to the commencement of the court proceedings.
Following an appeal, the Full Court today set aside the total penalty ordered against the CEPU by Justice Flick in February 2020 of $445,000 and replaced it with an order that the CEPU pay the Commonwealth penalties totalling $200,000 instead.
The Full Court accepted the CEPU’s argument the trial judge failed to ascribe a particular penalty to each contravention and found the primary judge erred by assessing and imposing a single penalty for all of the CEPU’s 86 contraventions in circumstances where that is not permissible.
However, in its judgment the Full Court noted the seriousness of the contraventions and said:
“The record-keeping obligations imposed under the Registered Organisations Act are treated by the legislature as important and serious, and the contraventions of those obligations are correspondingly serious.”
Registered Organisations Commissioner Mark Bielecki said that while the Full Court varied the overall penalty to $200,000 in this particular case, it continued to highlight the importance of registered organisations having appropriate record keeping and reporting systems in place to prevent contraventions of the RO Act and avoid the significant consequences of non-compliance.
A copy of the Full Court’s judgment is available here .
On 11 February 2020, Flick J imposed civil penalties on the CEPU for 86 contraventions of the RO Act in the sum of $445,000.
The Court found that the contraventions were widespread across all three of the CEPU’s Divisions, across six states and one territory and extended over a considerable period of time despite ongoing reminders and warnings being provided by the regulator about the CEPU’s obligations, including specific advice that conscious decisions to contravene provisions of the RO Act would be met with an appropriate regulatory response.