Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal)

• Jurisdiction: Australia Federal only
• Judgment Date: 12 April 2019
• Neutral Citation: [2019] FCAFC 59
• Date: 12 April 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59

Appeal from:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3) [2018] FCA 564
File number:	QUD 324 of 2018
Judges:	ALLSOP CJ, GRIFFITHS AND RANGIAH JJ
Date of judgment:	12 April 2019
Catchwords:	INDUSTRIAL LAW – appeal from a single judge of the Federal Court – where respondents engaged employees and subcontractors in stop-work meetings – contraventions of ss 355 and 346(b) of the Fair Work Act 2009 (Cth) – whether respondents also contravened s 417 – whether stop-work meetings were “industrial action” when employers had agreed to or authorised union meetings under an enterprise agreement – whether s 19(2)(a) applies – proper construction of the union meeting clause in an enterprise agreement – whether s 19(2)(a) authorises agreements with respect to industrial action which could be taken for the unlawful purpose of contravening sections of Pt 3-1 – whether there is a requirement that a union meeting be for a “genuine” purpose – whether a union meeting for an unlawful purpose is a “sham” and unlawful under s 194(e) for inconsistency with s 417 ; INDUSTRIAL LAW – pecuniary penalties imposed on the union through individual union officers for contraventions of s 355 and s 346(b) by sixteen strikes or stop-work meetings over nine days – whether more than one penalty should be imposed on those days in which there were multiple contraventions on multiple sites – application of s 556 for contraventions on the same date – application of course of conduct principle – deliberate, premeditated and sustained campaign of unlawful industrial behaviour orchestrated by the union – extensive and vast history of prior contraventions – involvement of senior union officers – loss found to be likely greater on the days where multiple sites affected – single penalty for each day involving multiple contraventions across multiple sites inadequate – appeal allowed in part
Legislation:	Fair Work Act 2009 (Cth) ss 3, 19, 55, 194, 228, 253, 340, 342, 343, 346, 347, 348, 354, 355, 356, 363, 406, 415, 417, 557, 793 Industrial Relations Reform Act 1993 (Cth) Workplace Relations Act 1996 (Cth) Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Federal Court Rules 2011 (Cth) rr 16.08, 16.33
Cases cited:	Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 363 ALR 246 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd [1986] HCA 46; 161 CLR 98 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 [2017] FCA 157; 267 IR 130 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; 249 FCR 458 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 357 ALR 55 Ballarat Health Services v Health Services Union [2012] FCAFC 79 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2013] FCAFC 53 Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417 Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; 91 FCR 463 Health Services Union v Ballarat Health Services [2011] FCA 1256 House v R [1936] HCA 40; 55 CLR 499 Kucks v CSR Ltd (1996) 66 IR 182 Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; 144 CLR 596 Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; 222 FCR 152 Transport Workers’ Union of Australia v Registered Organisations Commissioner [No 2] [2018] FCAFC 203; 363 ALR 464 Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; 245 IR 449
Date of hearing:	19 November 2018
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	146
Counsel for the Appellant:	J Bourke QC with R Sweet
Solicitor for the Appellant:	Clayton Utz
Counsel for the Respondents:	W.L Friend QC with C.A Massy
Solicitor for the Respondents:	Hall Payne Layers

ORDERS

		QUD 324 of 2018
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Appellant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; MATTHEW PARFITT Second Respondent ; JUSTIN STEELE Third Respondent ; KURT PAULS Fourth Respondent ; EDWARD BLAND Fifth Respondent ; ANTONIO FLORO Sixth Respondent ; ANTHONY STOTT Seventh Respondent ; MICHAEL DAVIS Eighth Respondent

JUDGES:	ALLSOP CJ, GRIFFITHS AND RANGIAH JJ
DATE OF ORDER:	12 April 2019

THE COURT ORDERS THAT:

1. The appeal be allowed in part.

2. Orders 19, 20 and 23 of the orders of the Court made on 24 April 2018 be set aside and in lieu thereof it be ordered:

19. In respect of the conduct on 13 September 2016, the subject of Declarations 34, 35, 36, 46, 47 and 48, the First Respondent pay two pecuniary penalties of $35,000 each.

20. In respect of the conduct on 14 September 2016, the subject of Declarations 40, 41, 42, 52, 53 and 54, the First Respondent pay two pecuniary penalties of $35,000 each.

23. In respect of the conduct on 23 September 2016, the subject of Declarations 49, 50, 51, 55, 56, 57, 75, 76, 77, 78, 81, 82, 83 and 84, the First Respondent pay six pecuniary penalties of $25,000 each.

Note: Entry of orders is dealt with in Rule 39.32 of the ...