Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2)

• Jurisdiction: Australia Federal only
• Judge: BROMBERG J
• Judgment Date: 21 June 2019
• Neutral Citation: [2019] FCA 973
• Date: 21 June 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

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

File number:	VID 281 of 2015
Judge:	BROMBERG J
Date of judgment:	21 June 2019
Catchwords:	INDUSTRIAL LAW – admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) (“Act”) which provides that a permit holder “exercising, or seeking to exercise, rights…must not…act in an improper manner” – admitted contravention of s 340(1) of the Act which provides that a person “must not take adverse action against another person…because the other person...has, or has not exercised a workplace right” – making of declarations – principles relating to imposition of pecuniary penalties –– 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 pecuniary penalties should be imposed on the second and third respondents personally – principles relating to personal payment orders.
Legislation:	Fair Work Act 2009 (Cth) ss 340, 340(1), 341(1), 342(1), 342(2)(a), 484, 487, 489, 489(2), 500, 546(1), 556, 793
Cases cited:	Australian Building Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan St Case”) [2018] FCA 957 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Footscray Station Case) [2017] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 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 (Non-Indemnification Personal Payment Case) [2018] FCAFC 97 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525 Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15 Mill v The Queen (1988) 166 CLR 59 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 R v McInerney (1986) 42 SASR 111 Veen v The Queen [No 2] (1988) 164 CLR 465
Date of hearing:	22 March 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	109
Counsel for the Applicant:	Mr D Star QC with Ms F Leoncio
Solicitor for the Applicant:	Australian Building and Construction Commission
Counsel for the Respondents:	Mr M Harding
Solicitor for the Respondents:	Gordon Legal

ORDERS

		VID 281 of 2015
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; DREW MACDONALD Second Respondent ; STEPHEN LONG Third Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	21 June 2019

PENAL NOTICE

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

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 contravened s 500 of the Fair Work Act 2009 (Cth) (“FW Act”) when exercising a right under Pt 3‑4 of the FW Act:

(a) on 20 February 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i) in response to the request from the occupier of the premises to produce his entry permit, saying dismissively “We don’t do that. I don’t need one of those. Have you got something to hide”; and

(ii) in defiance of a warning from the occupier that he would be trespassing if he did so, entering the Laverton North Premises.

(b) on 21 February 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i) in response to the request from the occupier of the premises to produce his entry permit, saying dismissively “Why you know we don’t do that … if I want to … talk to the guys I will”.

(c) on 5 March 2014, at the Cheltenham Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i) in defiance of a warning from the occupier of the premises that he was not permitted to enter the site without having given notice of entry and producing his entry permit, entering the site.

(d) on 5 March 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i) in defiance of a warning from the occupier of the premises that he would be trespassing, entering the construction site.

2. The Third Respondent contravened s 500 of the FW Act when exercising a right under Pt 3-4 of the FW Act:

(a) on 27 February 2014, at the Cheltenham Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted...