Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 03 December 2020
• Neutral Citation: [2020] FCA 1742
• Date: 03 December 2020

Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case) [2020] FCA 1742

File number(s):	TAD 15 of 2020
Judgment of:	O'CALLAGHAN J
Date of judgment:	3 December 2020
Catchwords:	INDUSTRIAL LAW – applicant seeks declarations of contraventions of ss 494 and 500 of the Fair Work Act 2009 (Cth) – contraventions admitted – orders as to penalty
Legislation:	Fair Work Act 2009 (Cth) ss 494, 494(1), 494(2), 500, 793 Work Health and Safety Act 2012 (Tas) s 117
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Parliament Square Case) (No 2) [2018] FCA 1201 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 (Castlemaine Police Station Case) (2018) 258 FCR 158 Australian Building and Construction Commissioner v Hassett [2019] FCA 855 Australian Building and Construction Commissioner v Hassett [2020] FCA 498 Australian Building and Construction Commissioner v Menon [2020] FCA 1418 Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470 Australian Ophthalmic Supplies Pty Ltd 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 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177 Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	77
Date of hearing:	16 November 2020
Counsel for the Applicant:	Mr ADH Denton
Counsel for the Respondents:	Mr CW Dowling SC with Mr P Boncardo

ORDERS

		TAD 15 of 2020
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; RICHARD HASSETT Second Respondent ; KEVIN HARKINS Third Respondent

order made by:	O'CALLAGHAN J
DATE OF ORDER:	3 December 2020

PENAL NOTICE

TO: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION, RICHARD HASSETT AND KEVIN HARKINS

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 DECLARES THAT:

1. On 23 May 2019, the Second Respondent contravened section 494 of the Fair Work Act 2009 (Cth) (FW Act) when he entered the construction project at 80 Elizabeth Street, Hobart, Tasmania (Site) and exercised rights under the Work Health and Safety Act 2012 (Tas) (WHS Act) while not being a permit holder under the FW Act.

2. On 28 May 2019, the Second Respondent contravened section 494 of the FW Act when he entered the Site and exercised rights under the WHS Act while not being a permit holder under the FW Act.

3. On 28 May 2019, the Third Respondent contravened section 494 of the FW Act by being knowingly involved in the contravention of section 494 of the FW Act by the Second Respondent.

4. On 28 May 2019, the Third Respondent contravened section 500 of the FW Act when he acted in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act by being knowingly involved in the contravention of section 494 of the FW Act at the Site.

5. On 28 May 2019, the Third Respondent contravened section 500 of the FW Act when he acted in an improper manner while exercising rights in accordance with Part 3-4 of the FW Act by:

   1. acting in a loud and intimidating manner toward the Site foreman when asked what safety equipment was unsafe, and saying words to the effect of “don’t get smart with me, arsehole. I’m nearly at the end of my career. I don’t give a fuck about what happens to me, but that bloke over there will be onto you [pointing to the Second Respondent]”;

   2. responding to a request to identify safety breaches with “you don’t fucking pay me, so I’m not going to tell you”; and

   3. responding to the Site project manager asking the Third Respondent to leave by telling him to “get fucked”.

6. The First Respondent contravened:

   1. section 494 of the FW Act on 23 May 2019 by reason of the conduct of the Second Respondent referred to in declaration 1;

   2. section 494 of the FW Act on 28 May 2019 by reason of the conduct of the Second Respondent referred to in declaration 2;

   3. section 494 of the FW Act on 28 May 2019 by reason of the conduct of the Third Respondent referred to in declaration 3;

   4. section 500 of the FW Act on 28 May 2019 by reason of the conduct of the Third Respondent referred to in declaration 4; and

   5. section 500 of the FW Act on 28 May 2019 by reason of the conduct of the Third Respondent referred to in declaration 5.

THE COURT ORDERS THAT:

1. The First Respondent pay the following pecuniary penalties:

1. $50,000 in respect of its contravention referred to in declaration 6(a);

2. $45,000 in respect of its contravention referred to in declaration 6(b);

3. $45,000 in respect of its contraventions referred to in declarations 6(c) and (d); and

4. $45,000 in respect of its contravention referred to in declaration 6(e).

2. The Second Respondent pay the following pecuniary penalties:

1. $10,000 in respect of his contravention referred to in declaration 1; and

2. $10,000 in respect of his contravention referred to in declaration 2.

3. The Third Respondent pay the following pecuniary penalties:

1. $8,000 in respect of his contraventions referred to in declarations 3 and 4; and

2. $8,000 in respect of his contravention referred to in declaration 5.

4. The Second Respondent pay the penalties required by Order 2 personally in that he not, whether before or after the payment of those penalties:

1. seek to have or encourage the First Respondent in any way whatsoever, directly or indirectly, to 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...