Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2)

• Jurisdiction: Australia Federal only
• Judge: MORTIMER J
• Judgment Date: 13 September 2019
• Neutral Citation: [2019] FCA 1498
• Date: 13 September 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498

File number:	VID 494 of 2016
Judge:	MORTIMER J
Date of judgment:	13 September 2019
Catchwords:	INDUSTRIAL LAW – pecuniary penalties – contravention of s 500 of the Fair Work Act 2009 (Cth) – consideration of relevant factors in assessment of penalties – relevance of prior contraventions to fixing of penalty – penalties imposed
Legislation:	Fair Work Act 2009 (Cth) ss 500, 539, 546, 793 Federal Court Rules 2011(Cth) rr 10.31(e), 41.07
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) [2018] FCA 1698; 283 IR 338 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCAFC 88; 262 FCR 473 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining And Energy Union (No 2) [2018] FCA 1968 Australian Building and Construction Commissioner v Gava [2018] FCA 1480 Australian Building and Construction Commissioner v McDermott (No 3) [2018] FCA 1105 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 Australian Competition and Consumer Commission v Chopra [2015] FCA 539 Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; ATPR 42–363 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 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 Director of Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; 241 FCR 338 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 365 ALR 402
Date of hearing:	8 April 2019
Date of last submissions:	25 March 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	52
Counsel for the Applicant:	Mr B J Avallone
Solicitor for the Applicant:	Sparke Helmore Lawyers
Counsel for the First and Second Respondent:	Ms S M Kelly
Solicitor for the First and Second Respondents:	Ms Kristen Reid of the Construction, Forestry, Maritime, Mining and Energy Union

ORDERS

		VID 494 of 2016
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; BRENDAN MURPHY Second Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	13 September 2019

PENAL NOTICE

NOTICE UNDER RULE 41.06 OF THE FEDERAL COURT RULES 2011 (Cth)

TO: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

AND: BRENDAN MURPHY

IF YOU (BEING THE PERSONS BOUND BY THESE ORDERS):

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE RELEVANT ORDERS FOR THE DOING OF THE ACT; OR

(B) DISOBEY A RELEVANT 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 ORDERS THAT:

1. The first respondent pay to the Commonwealth of Australia a penalty of $30,000 in respect of its contravention of s 500 of the Fair Work Act 2009 (Cth) as declared by the Court on 24 December 2018.

2. The second respondent pay to the Commonwealth of Australia a penalty of $4,500 in respect of his contravention of s 500 of the Fair Work Act 2009 (Cth) as declared by the Court on 11 December 2018.

3. The pecuniary penalties referred to in orders 1 and 2 above are to be paid to the Commonwealth of Australia within 28 days.

4. There be no order as to costs.

THE COURT DIRECTS THAT:

5. The applicant serve these orders on:

   1. the first respondent in accordance with r 10.04 of the Federal Court Rules 2011 (Cth); and

   2. the second respondent in accordance with r 10.01 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION AND SUMMARY

1. On 9 November 2018, I handed down reasons for judgment in this proceeding: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) [2018] FCA 1698; 283 IR 338. I found the applicant had proven the alleged contravention of s 500 of the Fair Work Act 2009 (Cth) (FW Act) by the second respondent, Mr Murphy, in relation to an incident that occurred on 3 December 2014 at a construction site under the control of Harris HMC Interiors (Vic) Pty Ltd (Harris HMC) at Geelong Grammar School. I will call that judgment “the liability reasons”. The decision was substantially delayed because the parties submitted, and I agreed, it was appropriate to await the outcome of the Full Court’s decision in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCAFC 88; 262 FCR 473 (Qantstruct), and to allow the parties to make further submissions after that decision was handed down.

2. On publication of the liability reasons, some matters still remained outstanding. I made orders requiring the parties to file a proposed agreed form of declaration regarding Mr Murphy’s liability and reflecting the findings in the Court’s reasons, and to file a joint note regarding the issue of the first respondent’s liability under s 793 of the FW Act and appropriate next steps in the proceeding. A proposed draft declaration and a joint note dated 23 November 2018 were provided to the Court on 5 December 2018.

3. On 11 December 2018, I made the following declaration regarding Mr Murphy’s contravention of s 500 of the FW Act, in the form proposed by the parties in their draft declaration:

THE COURT DECLARES THAT:

1. The Second Respondent contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act) on 3 December 2014 at a construction site at Geelong Grammar School in Corio (the Site) by:

a) intentionally hindering and obstructing Harris HMC, its subcontractors and their workers by calling and conducting a meeting on the Site, causing the subcontractors and their employees to leave the Site and causing work to cease; and

b) acting in an improper manner by failing to provide notice of his entry in contravention of s 487 of the FW Act, failing to produce his entry permit on request in contravention of s 489 of the FW Act, refusing to leave the Site when requested, making threats about not re-opening the Site and acting rudely and aggressively on the Site.

4. In their joint note, the parties submitted that the Court should...