Australian Building and Construction Commissioner v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 06 November 2020
• Neutral Citation: [2020] FCA 1619
• Date: 06 November 2020

Federal Court of Australia

Australian Building and Construction Commissioner v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2020] FCA 1619

File number:	NSD 478 of 2019
Judgment of:	ABRAHAM J
Date of judgment:	6 November 2020
Catchwords:	INDUSTRIAL LAW – Assessment of penalties – principles relating to imposition of pecuniary penalties – where parties proposed an agreed range – determination of appropriate penalty – where parties consented to declarations – declarations made – penalties ordered
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth) s 5 Crimes Act 1914 (Cth) s 4AA Fair Work Act 2009 (Cth) ss 12, 417, 418, 494, 498, 499, 500, 539, 546, 550, 556, 557, 793 Fair Work (Registered Organisations) Act 2009 (Cth) ss 26, 27 Work Health and Safety Act 2011 (NSW) ss 4, 19 119
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 549 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330; (2015) 327 ALR 540 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Cardigan St Case) [2018] FCA 957 Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2020] FCA 451; (2020) 295 IR 197 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Others[2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; (2019) 272 FCR 290 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; (2018) 265 FCR 208 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9; (2020) 274 FCR 19 Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2020) 191 IR 445 Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177 Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; (2008) 177 IR 306 TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; (2012) 210 FCR 277 Trade Practices Commission v CSR Ltd [1991] ATPR 52-135 Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548; (2009) 182 IR 327
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	74
Date of last submission:	14 July 2020
Date of hearing:	25 June 2020
Counsel for the Applicant:	Mr M Seck
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondents:	Ms C Howell
Solicitor for the Respondents:	Hall Payne Lawyers

ORDERS

		NSD 478 of 2019
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA First Respondent ; ANTONY STEGIC Second Respondent ; MICHAEL HOPPER (and another named in the Schedule) Third Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	6 November 2020

THE COURT DECLARES THAT:

1. The Court declares that, for the purposes of s 550(2) of the Fair Work Act 2009 (Cth) (FW Act), the second respondent (Stegic) was directly or indirectly, knowingly concerned in, or party to each contravention of s 417 of the FW Act by one or more of the employees of Nilsen (NSW) Pty Ltd (Nilsen) engaged to undertake electrical work at the SMTF Site (the Nilsen Employees) who engaged in a stoppage of work on 17 and 18 October 2016 at the Sydney Metro Trains Facility Site (SMTF Site) before the nominal expiry date of the Nilsen (NSW) Pty Ltd Construction Enterprise Agreement 2015 - 2018 (Nilsen Agreement) had passed and, as a result, by s 550(1) of the FW Act, Stegic contravened s 417 of the FW Act by:

   1. having been aware, or having ought to have been aware, that the Nilsen Agreement covered the Nilsen Employees and had not reached its nominal expiry date or, alternatively, having been aware, or having ought to have been aware, that the employment of the Nilsen Employees was covered, or likely to be covered, by an enterprise agreement which had not reached its nominal expiry date;

   2. attending the lunch shed and the induction room on the SMTF Site and meeting with Nilsen Employees engaged in a stoppage of work on 17 October 2016;

   3. refusing management from speaking with the Nilsen Employees in the lunch shed where the Nilsen Employees engaged in a stoppage of work on 17 October 2016;

   4. standing in the entrance of, and blocking the entry of management to, the lunch shed where the Nilsen Employees engaged in a stoppage of work on 17 October 2016;

   5. saying to the Nilsen Employees who had engaged in a stoppage of work on 17 October 2016 that they "did not have to work" and "will be paid" for the stoppage; and

   6. attending the lunch shed on the SMTF site on 18 October 2016 when the Nilsen Employees were directed to return to work and the Nilsen Employees failed or refused to work as required and remained in the lunch shed.

2. The Court declares that, for the purposes of s 550(2) of the FW Act, the third respondent (Hopper) was directly or indirectly, knowingly concerned in, or party to each contravention of s 417 of the FW Act by one or more of the Nilsen Employees to engage in a stoppage of work on 17 and 18 October 2016 at the SMTF Site before the nominal expiry date of the Nilsen Agreement had passed and, as a result, by s 550(1) of the FW Act, Hopper contravened s 417 of the FW Act by:

   1. having been aware, or having ought to have been aware, that the Nilsen Agreement covered the Nilsen Employees and had not reached its nominal expiry date or, alternatively, having been aware, or having ought to have been aware, that the employment of the Nilsen Employees was covered, or likely to be covered, by an enterprise agreement which had not reached its nominal expiry date;

   2. attending the lunch shed and the induction room on the SMTF Site and meeting with Nilsen Employees engaged in a stoppage of work on 17 October 2016; and

   3. actively opposing the efforts of management to get the Nilsen Employees to return to work.

3. The Court declares that, for the purposes of s 550(2) of the FW Act, the fourth respondent (Edward) was directly or indirectly, knowingly concerned in, or party to each contravention of s 417 of the...