Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2)

• Jurisdiction: Australia Federal only
• Judge: WHEELAHAN J
• Judgment Date: 20 September 2019
• Neutral Citation: [2019] FCA 1555
• Date: 20 September 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555

File number:	VID 523 of 2014
Judge:	WHEELAHAN J
Date of judgment:	20 September 2019
Catchwords:	INDUSTRIAL LAW – civil penalty provision – contraventions of s 340, s 343, s 345, s 348, s 349, and s 354 of Fair Work Act 2009 – relevance of past contraventions of provisions by parties to quantum of penalty – making of declarations and orders as to appropriate penalty.
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth) s 16(1) Crimes Act 1914 (Cth) s 4AA(1) Evidence Act 1995 (Cth) s 191(2) Fair Work Act 2009 (Cth) s 19, s 340, s 341(1)(b), s 341(2)(e), s 342, s 343, s 345, s 347(b)(iv), s 348, s 349, s 354, s 363, s 556, s 557, s 793
Cases cited:	Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 363 ALR 246 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Building and Construction Commissioner v Construction Forestry Mining and Energy Union [2018] HCA 3; 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Syme Library Case) [2018] FCA 1142 Brennan v Brennan [1953] HCA 28; 89 CLR 129 Chua Chee Chor v Chua Kim Yong [1962] 1 WLR 1464; [1963] 1 All ER 102 Commonwealth v Director, Fair Work Building Industry Inspectorate (The Agreed Penalties Case) [2015] HCA 46; 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (the Non-Indemnification Personal Payment Case) [2018] FCAFC 97; 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (the Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117; 281 IR 306 Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 4) [2012] FCA 894; 225 IR 113 Cruse v Multiplex Ltd [2008] FCAFC 179; 172 FCR 279 Orr v Holmes (1948) 76 CLR 632 Cousins v Merringtons Pty Ltd (No 2) [2008] VSC 340 Director of the Fair Work Building Industry Inspectorate v Construction Forestry Mining and Energy Union [2015] FCA 353 Holmes à Court v Papaconstuntinos [2011] NSWCA 59 Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 365 ALR 402 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 Trade Practices Commission v CSR Limited [1990] FCA 762; (1991) 13 ATPR 41-076 Transport Workers’ Union of Australia v Registered Organisations Commissioner [No 2] [2018] FCAFC 203; 363 ALR 464 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642
Date of hearing:	23 May 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	134
Counsel for the Applicant:	Mr M Felman with Mr A Denton
Solicitor for the Applicant:	Herbert Smith Freehills
Counsel for the First and Second Respondents:	Mr R Reitano
Solicitor for the First and Second Respondents:	Gordon Legal
Counsel for the Third, Fourth, Fifth and Sixth Respondents:	Mr M Rinaldi
Solicitor for the Third, Fourth, Fifth and Sixth Respondents:	Piper Alderman

ORDERS

		VID 523 of 2014
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING, AND ENERGY UNION First Respondent ; THEO THEODOROU Second Respondent ; HARRIS HMC INTERIORS (VIC) PTY LTD (ACN 130 177 614) (and others named in the Schedule) Third Respondent

JUDGE:	WHEELAHAN J
DATE OF ORDER:	20 SEPTEMBER 2019

PENAL NOTICE

TO: THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION, AND THEO THEODOROU

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT DECLARES THAT:

Mr Theodorou

1. The second respondent, an officer of the first respondent acting in that capacity for the purposes of section 363(1)(b) of the Fair Work Act 2009 (Cth) (the Act), contravened:

(a) section 345 of the Act on 23 October 2013 by knowingly making a false or misleading representation about the workplace rights of Monark Industries Pty Ltd (trading as Hughes Demolition) (Hughes Demolition);

(b) section 349 of the Act on 23 October 2013 by knowingly making a false or misleading representation about Hughes Demolition’s obligation to comply with a request by the first respondent to make an enterprise agreement;

(c) section 340 of the Act on 15 November 2013 by threatening to organise or take industrial action against Hughes Demolition because Hughes Demolition had not exercised its workplace right to make an enterprise agreement;

(d) section 343 of the Act on 15 November 2013 by threatening to organise or take industrial action against Hughes Demolition with intent to coerce Hughes Demolition to exercise its workplace right of making an enterprise agreement; and

(e) section 348 of the Act on 15 November 2013 by threatening to organise or take industrial action against Hughes Demolition with intent to coerce Hughes Demolition to engage in industrial activity by complying with a request by the first respondent to make an enterprise agreement.

The CFMEU

2. The first respondent, by the conduct of the second respondent in the...