Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case)

• Jurisdiction: Australia Federal only
• Judge: O’CALLAGHAN J
• Judgment Date: 06 December 2019
• Neutral Citation: [2019] FCA 2038
• Date: 06 December 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038

File number:	VID 515 of 2018
Judge:	O’CALLAGHAN J
Date of judgment:	6 December 2019
Catchwords:	INDUSTRIAL LAW – applicant seeks declarations of contraventions of ss 47(1) and 77(3) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and imposition of pecuniary penalties – respondents admit pleaded case – penalties imposed
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 47, 77, 81
Cases cited:	Auimatagi v Australian Building and Construction Commissioner[2018] FCAFC 191; (2018) 363 ALR 246 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155
Date of hearing:	3 October 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	71
Counsel for the Applicant:	M Felman
Solicitor for the Applicant:	The Australian Government Solicitor
Counsel for the Respondents:	R M Doyle SC with P Boncardo
Solicitor for the Respondents:	Maurice Blackburn Lawyers

ORDERS

		VID 515 of 2018
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; JOHN PERKOVIC Second Respondent ; KANE PEARSON (and another named in the Schedule) Third Respondent

JUDGE:	O’CALLAGHAN J
DATE OF ORDER:	6 december 2019

PENAL NOTICE

TO: THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION, JOHN PERKOVIC, KANE PEARSON AND MARIO RASPUDIC 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. The second respondent (Mr Perkovic), being an officer of the first respondent (the CFMMEU) and acting in that capacity for the purposes of s 94 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCIIP Act), contravened s 47(1) of the BCIIP Act on 8 May 2017 by engaging in an unlawful picket at the NewCold 1 Site, located at Agar Drive, Truganina in Victoria (First Contravention).

2. The third respondent (Mr Pearson), being an officer of the CFMMEU and acting in that capacity for the purposes of section 94 of the BCIIP Act, contravened s 47(1) of the BCIIP Act on 8 May 2017 by engaging in an unlawful picket at the NewCold 2 Site, located at Agar Drive, Truganina in Victoria (Second Contravention).

3. The fourth respondent (Mr Raspudic), being a member of the CFMMEU and by his conduct being authorised by Mr Pearson in his capacity as an officer of the CFMMEU for the purposes of s 94 of the BCIIP Act, contravened s 47(1) of the BCIIP Act on 8 May 2017 by engaging in an unlawful picket at the NewCold 2 Site (Third Contravention).

4. In respect of the First Contravention, the CFMMEU is taken to have contravened s 47(1) of the BCIIP Act on 8 May 2017 by operation of ss 94(1)(a), 94(2), 95(1)(b) and 95(3) the BCIIP Act (First CFMMEU Contravention).

5. In respect of the Second and Third Contraventions, the CFMMEU is taken to have contravened s 47(1) of the BCIIP Act on 8 May 2017 by operation of ss 94(1)(a), 94(2), 95(1)(b) and 95(3) of the BCIIP Act (Second CFMMEU Contravention).

6. The CFMMEU contravened s 77(3) of the BCIIP Act by failing to comply with a notice to produce records or documents issued by an Australian Building and Construction Inspector under s 77(1) of the BCIIP Act on or around 2 October 2017 (Third CFMMEU Contravention).

THE COURT ORDERS THAT:

7. Mr Perkovic pay a pecuniary penalty of $20,000 in respect of the First Contravention.

8. Mr Pearson pay a pecuniary penalty of $20,000 in respect of the Second Contravention.

9. Mr Raspudic pay a pecuniary penalty of $15,000 in respect of the Third Contravention.

10. The CFMMEU pay the following pecuniary penalties:

(a) $100,000 in respect of the First CFMMEU Contravention;

(b) $100,000 in respect of the Second CFMMEU Contravention; and

(c) $15,000 in respect of the Third CFMMEU Contravention.

11. Each of the pecuniary penalties is to be paid to the Commonwealth of Australia within 28 days.

12. The proceeding is otherwise dismissed.

13. The respondents pay the applicant’s costs of the proceeding.

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 The applicant (the Commissioner) seeks declarations that the respondents contravened ss 47(1) and 77(3) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the Act or the BCIIP Act), and the imposition of pecuniary penalties on them in relation to their respective contraventions of it.

2 By its amended defence to the Commissioner’s amended statement of claim, the respondents admit each allegation made against them, including the particulars.

3 Annexure A to these reasons is the text of the amended statement of claim.

4 The Commissioner seeks:

(a) declarations of contraventions of s 47(1) of the Act by each of the respondents;

(b) a declaration of a contravention of s 77(3) of the Act by the first respondent (the CFMMEU);

(c) the imposition of appropriate pecuniary penalties upon each of the respondents for contraventions of the Act;

(d) an order that those penalties be paid to the Commonwealth of Australia within 28 days;

(e) a personal payment order against the second respondent (Mr Perkovic) and the third respondent (Mr...