Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: BROMBERG J
• Judgment Date: 12 November 2019
• Neutral Citation: [2019] FCA 1859
• Date: 12 November 2019

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859

File number:	VID 167 of 2016
Judge:	BROMBERG J
Date of judgment:	12 November 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 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 – relevance of previous contraventions by the respondents of industrial legislation to penalty to be imposed – proportionality of penalty to contravening conduct – general deterrence – specific deterrence – whether only one contravention should be found against the third respondent as a sum of the conduct of the second and third respondents – whether pecuniary penalties should be imposed on the second and third respondents personally.
Legislation:	Fair Work Act 2009 (Cth) ss 346, 348, 546(1), 556
Cases cited:	Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 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, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498 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 Aldi/Altona North Case) (No 2) [2019] FCA 1667 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 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 10 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 (The Quest Apartments Case) (No 2) [2018] FCA 163 Australian Building and Construction Commissioner v Hassett [2019] FCA 855 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393 Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 Canturi v Sita Coaches Pty Ltd (ACN 004 444 900) (2002) 116 FCR 276 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra’s Edge Case) [2016] FCA 772 Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 R v Arundell [2003] VSCA 69 Veen v The Queen (No 2) (1988) 164 CLR 465
Date of hearing:	19 March 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	54
Counsel for the Applicant:	Mr D Star QC with Ms M Paszkiewicz
Solicitor for the Applicant:	Australian Building and Construction Commission
Counsel for the Respondents:	Mr R Reitano
Solicitor for the Respondents:	Slater & Gordon Lawyers

ORDERS

		VID 167 of 2016
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; STEPHEN LONG Second Respondent ; GERARD BENSTEAD Third Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	12 november 2019

PENAL NOTICE

TO: THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION, STEPHEN LONG AND GERARD BENSTEAD.

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 22 April 2015, the Second Respondent contravened:

   1. section 346 of the Fair Work Act 2009 (Cth) (“FW Act”) at a construction site at 209-213 Bay Street, Brighton (“site”) by organising industrial action against Tarastar Pty Ltd trading as BPM Built (“BPM”) because BPM engaged in industrial activity within the meaning of s 347(b)(iv) of the FW Act by not acceding to the request or demand made by the Second Respondent for BPM to provide additional site amenities; and

   2. section 348 of the FW Act at the site by organising industrial action against BPM with intent to coerce BPM to engage in industrial activity within the meaning of s 347(b)(iv) of the FW Act by acceding to the request or demand made by the Second Respondent for BPM to provide additional site amenities.

2. On 22 April 2015, the Third Respondent contravened:

1. section 346 of the FW Act at the site by organising industrial action against BPM, because BPM engaged in...