Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Aldi/Altona North Case) (No 2)

• Jurisdiction: Australia Federal only
• Judge: BROMBERG J
• Judgment Date: 11 October 2019
• Neutral Citation: [2019] FCA 1667
• Court: Federal Court
• Date: 11 October 2019

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Aldi/Altona North Case) (No 2) [2019] FCA 1667

File number:	VID 458 of 2016
Judge:	BROMBERG J
Date of judgment:	11 October 2019
Catchwords:	INDUSTRIAL LAW – admitted contraventions of s 348 of the Fair Work Act 2009 (Cth) (“Act”) which provides that a person must not organise or take or threaten to take any action to coerce another person to engage in industrial activity – admitted contraventions of s 346(c) of the Act which provides that a person must not take adverse action against another person because the person does not or is not or proposes not to engage in industrial activity – making of declarations – principles relating to imposition of pecuniary penalties – the relevance of previous contraventions by the respondents of industrial legislation to the penalty to be imposed – proportionality of penalty to contravening conduct – general deterrence – specific deterrence – whether a single course or multiple courses of conduct – principle of totality – whether a personal payment order should be imposed on the second respondent.
Legislation:	Fair Work Act 2009 (Cth), ss 346, 347(b)(iv), 348, 539, 546(1) 556
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Cardigan Street Case) [2018] FCA 957 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) (2018) 260 FCR 564 Australian Building and Construction Commissioner v Construction Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The QLD Infrastructure Case) (2017) 254 FCR 68 Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117
Date of hearing:	19 March 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	52
Counsel for the Applicant:	Mr M Follett
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	Mr R Reitano
Solicitor for the Respondents:	Slater & Gordon Lawyers

ORDERS

		VID 458 of 2016
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; DREW MACDONALD Second Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	11 October 2019

PENAL NOTICE

TO: THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION AND DREW MACDONALD

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:

1. On 5 December 2014, the Second Respondent contravened:

(a) section 348 of the Fair Work Act 2009 (Cth) (“FW Act”) when he parked a vehicle across the only vehicle access entrance to 302-330 Millers Road, Altona North, Victoria (“Altona North Site”) and otherwise prevented any vehicles from entering the Altona North Site, with intent to coerce Magellan Projects Pty Ltd (“Magellan”) to comply with a lawful request to make an enterprise agreement;

(b) section 346 of the FW Act when he took adverse action against Magellan by parking a vehicle across the only vehicle access entrance to the Altona North Site and otherwise preventing any vehicles from entering the Altona North Site, because Magellan had engaged in industrial activity by not complying with a lawful request to make an enterprise agreement.

2. On 8 December 2014, the Second Respondent contravened:

(a) section 348 of the FW Act when he parked a vehicle across the only vehicle access entrance to the Altona North Site and otherwise prevented any vehicles from entering the Altona North Site, with intent to coerce Magellan to comply with a lawful request to make an enterprise agreement; and

(b) section 346 of the FW Act when he took adverse action against Magellan by parking a vehicle across the only vehicle access entrance to the Altona North Site and otherwise preventing any vehicles from entering the Altona North Site, because Magellan had engaged in industrial activity by not complying with a lawful request to make an enterprise agreement.

3. The First Respondent contravened:

(a) section 348 of the FW Act on 5 December 2014 by reason of the conduct of the Second Respondent referred to in declaration 1(a);

(b) section 346 of the FW Act on 5 December 2014 by reason of the conduct of the Second Respondent referred to in declaration 1(b);

(c) section 348 of the FW Act on 8 December 2014 by reason of the conduct of the Second Respondent referred to in declaration 2(a);

(d) section 346 of the FW Act on 8 December 2014 by reason of the conduct of the Second Respondent referred to in declaration 2(b);

THE COURT ORDERS THAT:

1. The First Respondent pay the following pecuniary penalties:

(a) $40,000 in respect of its contravention of s 348 of the FW Act dealt with in declaration 3(a); and

(b) $40,000 in respect of its contravention of s 348 of the FW Act dealt with in declaration 3(c).

2. The Second Respondent pay the following pecuniary penalties:

(a) $6,000 in respect of his contravention of s 348 of the FW Act dealt with in declaration 1(a); and

(b) $6,000 in respect of his contravention of s 348 of the FW Act dealt with in declaration 2(a).

3. The Second Respondent pay the penalties required by Order 2 personally in that he not, whether before or after the payment of those penalties:

(a) seek to have or encourage the First Respondent in any way whatsoever, directly or indirectly, to pay to him or for his financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part; and

(b) accept or receive from the First Respondent in any way whatsoever, any money or financial benefit referable to the payment of the penalties, whether in whole or in part.

4. The Applicant serve these orders on:

(a) the First Respondent in accordance with rule 10.04 of the Federal Court Rules 2011 (Cth); and

(b) the Second Respondent in accordance with rule 10.01 of the Federal Court Rules.

5. The pecuniary penalties referred to in Orders 1 and 2 be paid to the Commonwealth of...