Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2)

• Jurisdiction: Australia Federal only
• Judge: ANASTASSIOU J
• Judgment Date: 27 February 2020
• Neutral Citation: [2020] FCA 202
• Date: 27 February 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202

File number:	VID 955 of 2015
Judge:	ANASTASSIOU J
Date of judgment:	27 February 2020
Catchwords:	INDUSTRIAL LAW – pecuniary penalties – contravention of s 500 of the Fair Work Act 2009 (Cth) (FW Act) – Union conceded liability under ss 550 and 793 of the FW Act – determination of appropriate penalty – analysis of the nature, gravity, character and seriousness of the contraventions – whether history of contravening conduct should inform the court’s assessment of an appropriate penalty in the instant case – application of “course of conduct” and “totality” principles
Legislation:	Fair Work Act 2009 (Cth) ss 500, 546(1), 550, and 793 Occupational Health and Safety Act 2004 (Vic)
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 Commission v Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 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 (Castlemaine Police Station Case) [2018] FCAFC 15; 258 FCR 158 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Securities and Investments Commission v Southcorp Ltd (No 2) [2003] FCA 1369; 130 FCR 406 BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234 Cahill v CFMEU [2008] FCA 495 Commonwealth of Australia v Director of the Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482; 90 ALJR 113; 326 ALR 476; (2015) 67 AILR 102–494; 255 IR 87 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (the Broadway On Ann Case) [2018] FCAFC 126; 265 FCR 208 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 Cozadinos v CFMEU [2011] FMCA 284 Markarian v The Queen (2005) 228 CLR 357 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 SZEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40‑091 Veen v The Queen (No 2) (1988) 164 CLR 465 White v CFMEU [2011] FCA 192 Wong v The Queen (2001) 207 CLR 584
Date of hearing:	18 March and 17 April 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	39
Counsel for the Applicant:	Mr M. J. Follett
Solicitor for the Applicant:	Maddocks Lawyers, and, Australian Building and Construction Commission
Counsel for the Respondents:	Ms S. M. Kelly
Solicitor for the Respondents:	Slater & Gordon

ORDERS

		VID 955 of 2015
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; ALEC TADIC Second Respondent

JUDGE:	ANASTASSIOU J
DATE OF ORDER:	27 February 2020

PENAL NOTICE

TO: THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION, AND ALEX TADIC

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. In respect of the contravention of section 500 of the Fair Work Act 2009 (Cth) (the Act) by the second respondent declared by the Full Court on 12 February 2018, the first respondent:

   1. engaged in the second respondent’s conduct by operation of section 793(1) of the Act and thereby participated in that contravention;

   2. is taken by operation of section 793(2) of the Act, to have known of all of the essential facts constituting that contravention;

   3. was accordingly knowingly concerned in that contravention within the meaning of section 550 of the Act; and

   4. thereby itself contravened section 500 of the Act in respect of that contravention.

THE COURT ORDERS THAT:

1. The name of the first respondent be amended from the “Construction, Forestry, Mining and Energy Union” to the “Construction, Forestry, Maritime, Mining and Energy Union”.

2. The second respondent pay a penalty of $8,500 in respect of his contravention of section 500 of the Act as declared by the Full Court on 12 February 2018.

3. The first respondent pay a penalty of $51,000 in respect of its contravention of section 500 of the Act as declared by declaration 1 above.

4. The pecuniary penalties referred to in paragraph 2 be paid to the Commonwealth of Australia within 28 Days of these orders being made by the Court.

5. The pecuniary penalties referred to in paragraph 3 be paid to the Commonwealth of Australia within 28 Days of these orders being made by the Court.

6. There be no order as to costs.

7. The proceeding is otherwise dismissed.

THE COURT DIRECTS THAT:

8. The applicant serve these orders on:

   1. the first respondent in accordance with rule 10.04 of the Federal Court Rules 2011; and

   2. the second respondent in accordance with rule 10.31 of the Rules.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

Background

1. The applicant (the Commission) seeks declarations and civil penalties in relation to contraventions of the Fair Work Act 2009 (Cth) (FW Act) by the first respondent (hereafter the Union) and the second respondent (Mr Tadic). The Union was previously known as the Construction, Forestry, Mining and Energy Union but has since merged with the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia to become the Construction, Forestry, Maritime, Mining and Energy Union, commonly referred to as the CFMMEU.

2. The application before the Court concerns the penalty to be imposed on the Union and Mr...