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

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: KATZMANN J
• Judgment Date: 28 July 2020
• Neutral Citation: [2020] FCA 1070
• Date: 28 July 2020

FEDERAL COURT OF AUSTRALIA

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

[2020] FCA 1070

File number:	ACD 29 of 2019
Judge:	KATZMANN J
Date of judgment:	28 July 2020
Catchwords:	INDUSTRIAL LAW — contraventions of s 47 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) — where three union officials admittedly engaged in unlawful picketing at a building site — assessment of penalties — where s 94 provides that a body corporate is taken to have engaged in the same conduct as an officer, employee or agent of the body within the scope of his or her actual or apparent authority, whether the union committed three contraventions of s 47 or one — whether the union’s history of non-compliance with industrial laws entitles or warrants maximum or near maximum penalties or penalty — role of proportionality in assessment of civil penalties — whether prior contraventions of a different character should be taken into account — whether prior contraventions by union in other parts of Australia by other branches of the same division should be taken into account — whether motivations of union officials a mitigating factor — whether personal payment orders should be made against union officials
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 3, 5, 6, 47(2), 81, 84, 94 Fair Work Act 2009 (Cth) s 793 Fair Work (Registered Organisations) Act 2009 (Cth) s 26, 27 Federal Court of Australia Act 1976 (Cth) ss 21, 23 Evidence Act 1995 (Cth) s 55 Crimes Legislation Amendment (Penalty Unit) Act 2017 (Cth), Sch 1
Cases cited:	Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556 Alfred v Lanscar [2007] FCA 1001; 167 IR 320 Auimatagi v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 191; 285 IR 250 (2019) 286 IR 116 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 Bay Street Case) (2018) 260 FCR 564 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, 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) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Childrens’ Hospital Contraventions Case) [2017] FCA 491 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Webb Dock Case) [2017] FCA 62 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 Australian Building and Construction 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 (The NewCold Picket Case) [2019] FCA 2038 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 Harris [2017] FCA 733 Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340 Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082; 270 IR 165 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd [2004] FCA 693; 207 ALR 329 BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040; 189 IR 304 Commissioner of the Australian Building and Construction Commission v Hall [2018] FCCA 3532 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9 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 (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417; 191 IR 445 Cruse v Multiplex Ltd (2008) 172 FCR 279 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 1014 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining & Energy Union [2014] FCA 126 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) (2015) 234 FCR 451 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 Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 607 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160; 140 ALD 337 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2012] FCA 966; 224 IR 457; 64 AILR 101–721 Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120; 189 IR 145 Gregor v Construction Forestry Mining and Energy Union [2011] FCA 808 Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818; 198 IR 312; 62 AILR 101–213 Leighton Contractors...