Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 17 February 2021
• Neutral Citation: [2021] FCA 105
• Date: 17 February 2021

Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105

File number:	QUD 228 of 2019
Judgment of:	RANGIAH J
Date of judgment:	17 February 2021
Catchwords:	INDUSTRIAL LAW – pecuniary penalties for contraventions of ss 46 and 54 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – consideration of appropriate penalties – whether personal payment order should be made against union official where order not sought in originating application –no personal payment order made – respondents to pay applicant’s costs
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 7, 46, 54, 81, 83 and 84 Fair Work Act 2009 (Cth) s 546(1) and Pt 3-3 Federal Court Rules 2011 (Cth) rr 8.01 and 8.03
Cases cited:	Australian Building and Construction Commissioner v Adams [2018] FCA 1520 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (North Queensland Stadium Case) [2020] FCA 947 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan St Case”) [2018] FCA 957 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 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 (The Quest Apartments Case) (No 2) (2018) 358 ALR 725; [2018] FCA 163 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 1662 Australian Building and Construction Commissioner v McCullough (No 2) [2017] FCA 295 Australian Building and Construction Commissioner v Mamudi [2017] FCA 134 Australian Building Construction Commissioner v Huddy (No 2) [2017] FCA 1088 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2007] FCAFC 119 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208 Cozadinos v Construction, Forestry, Mining and Energy Union [2013] FCA 1243 Director of Fair Work Building Industry Inspectorate v Stephenson (2014) 146 ALD 75; [2014] FCA 1432 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798 Director of the Fair Work Building Industry Inspectorate v Ellen (The Longford Gas Plant Case) [2016] FCA 1395 Director of the Fair Work Building Industry Inspectorate v Merkx [2015] FCA 316 Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 Hughes v Western Australian Cricket Association Inc (1986) ATPR 40–748 Kosciuszko Thredbo Pty Limited v ThredboNet Marketing Pty Limited (No 2) [2013] FCA 609 Northern Territory v Sangare (2019) 265 CLR 164 Oshlack v Richmond River Council (1998) 193 CLR 72 Pattinson v Australian Building and Construction Commissioner (2020) 384 ALR 75; [2020] FCAFC 177 The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174
Division:	Fair Work Division
Registry:	Queensland
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	79
Date of last submissions:	10 December 2020 (Applicant) 10 December 2020 (Respondents)
Date of hearing:	3 December 2020
Counsel for the Applicant:	Mr A Denton
Solicitor for the Applicant:	Norton Rose Fulbright
Counsel for the Respondents:	Mr R Kenzie QC with Mr C Massy
Solicitor for the Respondents:	Hall Payne Lawyers

ORDERS

		QUD 228 of 2019
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; GRANT HARRADINE Second Respondent ; WALTER BENEDITO (and others named in the Schedule) Third Respondent

order made by:	RANGIAH J
DATE OF ORDER:	17 FEBRUARY 2021

PENAL NOTICE ; TO: - CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION - GRANT HARRADINE - WALTER BENEDITO - SHANE BRYANT GRANT COOKE - CRAIG CRANNAFORD - MATT DANIELS - DWAYNE DESATGE - JOSEPH DUCK - JOHN EASTAUGHFFE - DAMIEN HAYDON - LAWRENCE HENAWAY - PETER LEWIS - VINCENT MARELLO - TROY RENWICK - MICHAEL ROACH - SHANNON TAMBO - ALFIO TORNABENE ; 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 ORDERS THAT:

1. The first respondent pay a penalty of $190,000 for its contraventions of s 54 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCI Act).

2. The second respondent pay a pecuniary penalty of $20,000 for his contraventions of s 54 of the BCI Act.

3. The third, fourth, sixth, ninth to fourteenth, seventeenth and eighteenth respondents each pay a pecuniary penalty of $5,000 for their contraventions of s 46 of the BCI Act.

4. The fifth, seventh, eighth, fifteenth and sixteenth respondents each pay a pecuniary penalty of $4,500 for their contravention of s 46 of the BCI Act.

5. The applicant serve these orders upon each of the respondents.

6. The pecuniary penalties be paid to the Commonwealth of Australia within 28 days of the service of these orders.

7. The applicant’s application to file an amended originating application be dismissed.

8. The respondents pay the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1. In Australian Building and...