Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union

• Jurisdiction: Australia Federal only
• Judgment Date: 04 April 2019
• Neutral Citation: [2019] FCA 468
• Court: Federal Court
• Date: 04 April 2019

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 468

File number(s):	VID 347 of 2018
Judge(s):	O’CALLAGHAN J
Date of judgment:	4 April 2019
Catchwords:	INDUSTRIAL LAW – contraventions of s 348 of Fair Work Act 2009 (Cth) – making of orders as to penalty
Legislation:	Fair Work Act 2009 (Cth), s 348
Cases cited:	Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 Australian Building and Construction Commissioner v Gava [2018] FCA 1480 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 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
Date of hearing:	21 March 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	62
Counsel for the Applicant:	Ms F Leoncio
Solicitor for the Applicant:	Sparke Helmore Lawyers
Counsel for the Respondents:	Mr P Boncardo
Solicitor for the Respondents:	Construction, Forestry, Maritime, Mining and Energy Union

ORDERS

		VID 347 of 2018
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; MAURICE CAMPANARO Second Respondent ; JOE CARATOZZOLO (and others named in the Schedule) Third Respondent

JUDGE:	O’CALLAGHAN J
DATE OF ORDER:	4 April 2019

THE COURT DECLARES THAT:

1. The second respondent, an officer of the first respondent acting in that capacity for the purposes of s 363(1)(b) of the Fair Work Act 2009 (the FW Act), contravened s 348 of the FW Act when, on 25 November 2016, after an induction held at the site of the construction project known as the Trillium Apartments project in Melbourne, Victoria (the Trillium Project), he threatened to and did prevent Mr John Patsalas from working on the Trillium Project, and did so with intent to coerce Mr Patsalas to engage in industrial activity within the meaning of s 347(b)(vi), specifically by paying a fee to the first respondent (Campanaro’s 25 November 2016 s 348 Contravention).

2. The third respondent, an officer of the first respondent acting in that capacity for the purposes of s 363(1)(b) of the FW Act, contravened s 348 of the FW Act when, on 15 February 2017, after an induction held at the site of the construction project known as the EQ Tower Apartments project in Melbourne, Victoria (the EQ Project), he threatened to and did prevent Mr Patsalas from working on the EQ Project, and did so with intent to coerce Mr Patsalas to engage in industrial activity within the meaning of s 347(b)(vi), specifically by paying a fee to the first respondent (Caratozzolo’s 15 February 2017 s 348 Contravention).

3. The first respondent contravened s 348 of the FW Act in that it:

   1. by reason of ss 363(1) and/or 793(1) of the FW Act, engaged in the same conduct as that by which its officer effected Campanaro’s 25 November 2016 s 348 Contravention; and

   2. by reason of ss 363(3) and/or 793(2) of the FW Act, engaged in that conduct with the same intent to coerce as that with which its officer engaged in the same conduct.

4. The first respondent contravened s 348 of the FW Act in that it:

   1. by reason of ss 363(1) and/or 793(1) of the FW Act, engaged in the same conduct as that by which its officer effected Caratozzolo’s 15 February 2017 s 348 Contravention; and

   2. by reason of ss 363(3) and/or 793(2) of the FW Act, engaged in that conduct with the same intent to coerce as that with which its officer engaged in the same conduct.

THE COURT ORDERS THAT:

5. The second respondent pay a pecuniary penalty of $4,000 in respect of his contravention of s 348 of the FW Act as declared in paragraph 1 above.

6. The third respondent pay a pecuniary penalty of $4,000 in respect of his contravention of s 348 of the FW Act as declared in paragraph 2 above.

7. The first respondent pay the following pecuniary penalties:

1. $35,000 in respect of its contravention of s 348 of the FW Act as declared in paragraph 3 above; and

2. $35,000 in respect of its contravention of s 348 of the FW Act as declared in paragraph 4 above.

8. The pecuniary penalties referred to in orders 1 to 3 above are to be paid to the Commonwealth of Australia within 28 days.

9. The proceeding with regard to the first, second and third respondents otherwise be dismissed.

10. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1. By amended originating application dated 23 November 2018, the applicant (the Commissioner) seeks declarations of contraventions of s 348 of the Fair Work Act 2009 (Cth) (the FW Act) by each of the first to third respondents (the respondents) and the imposition of pecuniary penalties, for conduct that occurred at two construction sites in the Melbourne CBD in November 2016 and February 2017.

2. The respondents accept that they each contravened s 348: the first respondent (the CFMMEU) twice, and the second and third respondents (Messrs Campanaro and Caratozzolo respectively) once each. The respondents also accept that declarations should be made. The parties have agreed to the form of the declarations.

3. The parties agree that a “low to mid range” penalty is appropriate for the second and third respondents. In respect of the CFMMEU, however, the Commissioner seeks the maximum available penalty, while the respondents say a low to mid range penalty is appropriate.

Penalties applicable

4. The maximum penalty for each contravention in this case is 300 penalty units for the CFMMEU and 60 penalty units for Messrs Campanaro and Caratozzolo.

5. A “penalty unit” is defined in s 4AA of the Crimes Act 1914 (Cth). At the relevant time the value of a penalty unit was $180. Accordingly, the maximum penalty that might be imposed for each contravention on the CFMMEU is $54,000, and $10,800 each on Messrs Campanaro and Caratozzolo. The CFMMEU was, at that time, the CFMEU, but I shall refer to the union by its new name.

The facts

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