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

• Jurisdiction: Australia Federal only
• Judge: SNADEN J
• Judgment Date: 05 June 2020
• Neutral Citation: [2020] FCA 757
• Court: Federal Court
• Date: 05 June 2020

FEDERAL COURT OF AUSTRALIA

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

[2020] FCA 757

File number:	VID 881 of 2017
Judge:	SNADEN J
Date of judgment:	5 June 2020
Catchwords:	INDUSTRIAL LAW – pecuniary penalties – agreed contraventions – adverse action – application of “no ticket, no start” philosophy – coercion of subcontractor to pay “union rates” – analysis of the nature, gravity, character and seriousness of the contraventions – whether history of contravening conduct should inform the court’s assessment of how objectively serious the agreed contraventions were – application of “civil double jeopardy”, “course of conduct” and “totality” principles – personal payment orders – appropriateness of declaratory relief
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 5 and 15 Crimes Act 1914 (Cth), s 4AA Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth), item 2 of sch 1 Fair Work Act 2009 (Cth) pts 2-4, 3-1; ss 12, 336, 342, 346, 347, 348, 363, 539, 545, 546, 556 and 793 Fair Work (Registered Organisations) Act 2009 (Cth) s 12
Cases cited:	A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246 Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case) (No 2) [2017] FCA 367 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 (Castlemaine Police Station Case No 2) [2020] FCA 202 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 Bay Street Case) (No 2) [2019] FCA 1859 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, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262 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) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201 Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 Fair Work Ombudsman v Australian Workers’ Union [2020] FCA 60 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 Gregor v Construction, Forestry, Mining and Energy Union & Anor [2011] FMCA 562 John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors [2009] FMCA 1248 Markarian v The Queen (2005) 228 CLR 357 Parker v Australian Building and Construction Commissioner (2019) 365 ALR 402 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 Veen v the Queen (No 2) (1988) 164 CLR 465 Warramunda Village v Pryde (2001) 105 FCR 437 Wong v The Queen (2001) 207 CLR 584
Date of hearing:	16 September 2019 and 19 December 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	119
Counsel for the Applicant:	Mr R Dalton QC with Mr A Pollock
Solicitor for the Applicant:	Seyfarth Shaw
Counsel for the Respondents:	Mr R Reitano
Solicitor for the Respondents:	Maurice Blackburn

ORDERS

		VID 881 of 2017
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; MARIO RASPUDIC Second Respondent ; MARK TRAVERS Third Respondent

JUDGE:	SNADEN J
DATE OF ORDER:	5 JUNE 2020

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to Construction, Forestry, Maritime, Mining and Energy Union.

2. The first respondent pay pecuniary penalties totalling $110,000.00.

3. The second respondent pay pecuniary penalties totalling $7,500.00.

4. The third respondent pay a pecuniary penalty of $6,000.00.

5. The penalties referred to in order 2 above be paid to the Commonwealth within 28 days.

6. The penalties referred to in orders 3 and 4 above be paid to the Commonwealth within 60 days.

7. The second respondent pay the penalties in order 3 above personally, in that he not, whether before or after the payment of the penalties:

   1. seek to have, or to encourage that, the first respondent, in any way whatsoever, directly or indirectly, 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

   2. 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.

8. The third respondent pay the penalty in order 4 above personally, in that he not, whether before or after the payment of the penalty:

   1. seek to have, or to encourage that, the first respondent, in any way whatsoever, directly or indirectly, pay to him or for his financial benefit, in any way whatsoever, any money or financial benefit referable to the payment of the penalty, whether in whole or in...