Australian Building and Construction Commissioner v Australian Workers' Union

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 28 July 2021
• Neutral Citation: [2021] FCA 861
• Date: 28 July 2021

Federal Court of Australia

Australian Building and Construction Commissioner v Australian Workers’ Union [2021] FCA 861

File number:	VID 334 of 2019
Judgment of:	BROMBERG J
Date of judgment:	28 July 2021
Catchwords:	INDUSTRIAL LAW – civil penalties – admitted contravention of s 475(2) of the Fair Work Act 2009 (Cth) which prohibits an employee organisation or an officer or member thereof requesting an employer pay employees for a period in which employees undertook unprotected industrial action – admitted contraventions of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) which provides that a person must not organise or engage in unlawful industrial action – principles in relation to the imposition of pecuniary penalties – seriousness of contraventions – relevance of prior contraventions of industrial law – relevance of individual factors including contrition and remorse, cooperation, a culture of compliance and capacity to pay – application of the course of conduct principle
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss 5, 6(1)(d), 46, 49(c), 81, 94(1) Fair Work Act 2009 (Cth), ss 12, 19(1)(c), 418, 474, 475, 539, 546, 793(1)(a) Federal Court of Australia Act 1976 (Cth), s 21
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 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 (Perth Childrens’ Hospital Contraventions Case) [2017] FCA 491 Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2006] FCA 1730; (2007) ATPR 42-140 Australian Building and Construction Commissioner v Menon [2020] FCA 1418 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Australian Securities and Investments Commission v Southcorp Ltd (No 2) (2003) 130 FCR 406 BlueScope Steel Limited v Australian Workers’ Union [2018] FCA 1574 BlueScope Steel Limited v The Australian Workers’ Union [2019] FCA 182 Commonwealth 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 Palmerston Police Station Case) [2021] FCAFC 7 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 384 ALR 75 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150; 204 IR 142 Registered Organisations Commissioner v Australian Workers’ Union [2019] FCA 1852 R v McInerney (1986) 42 SASR 111 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	81
Date of hearing:	1 March 2021
Counsel for the Applicant:	Mr J Bourke QC with Mr M Felman
Solicitor for the Applicant:	Herbert Smith Freehills
Counsel for the Respondents:	Mr C Tran
Solicitor for the Respondents:	Maurice Blackburn Lawyers

ORDERS

		VID 334 of 2019
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	AUSTRALIAN WORKERS’ UNION First Respondent ; CRAIG KELLY Second Respondent

order made by:	BROMBERG J
DATE OF ORDER:	28 July 2021

THE COURT DECLARES THAT:

1. On 31 October 2018, the Second Respondent (Kelly) organised employees of OneSteel Reinforcing Pty Ltd (OneSteel), who were employed at 180 Browns Road, Noble Park, Victoria (the Site), to take industrial action that day in contravention of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) (the 31 October 2018 s 46 Kelly Contravention).

2. By operation of ss 94(1)(a) and 95(1)(b) of the BCIIP Act, the First Respondent (AWU) has contravened s 46 of the BCIIP Act in respect of the 31 October 2018 s 46 Kelly Contravention (the 31 October 2018 s 46 AWU Contravention).

3. On 1 November 2018, Kelly organised employees of OneSteel to take industrial action at the Site that day in contravention of s 46 of the BCIIP Act (the 1 November 2018 s 46 Kelly Contravention).

4. By operation of ss 94(1)(a) and 95(1)(b) of the BCIIP Act, the AWU has contravened s 46 of the BCIIP Act in respect of the 1 November 2018 s 46 Kelly Contravention (the 1 November 2018 s 46 AWU Contravention).

5. On 31 October 2018, Kelly, at a meeting at the Site with OneSteel management, in contravention of s 475(2) of the Fair Work Act 2009 (FW Act), made a request that OneSteel pay its day shift employees for their shift that day in circumstances where those employees had taken industrial action for the majority of that shift (the 31 October 2018 s 475(2) Kelly Contravention).

6. By operation of s 793(1) of the FW Act, the AWU has contravened s 475(2) of the FW Act in respect of the 31 October 2018 Kelly s 475(2) Contravention (the 31 October 2018 s 475(2) AWU Contravention).

THE COURT ORDERS THAT:

1. The Second Respondent pay a penalty in respect of:

   1. the 31 October 2018 s 46 Kelly Contravention in the amount of $2,700;

   2. the 1 November 2018 s 46 Kelly Contravention in the amount of $2,700; and

   3. the 31 October 2018 s 475(2) Kelly Contravention in the amount of $1,600.

2. The First Respondent pay a penalty in respect of:

   1. the 31 October 2018 s 46 AWU Contravention in the amount of $25,000;

   2. the 1 November 2018 s 46 AWU Contravention in the amount of $25,000; and

   3. the 31 October 2018 s 475(2) AWU Contravention in the amount of $30,000.

3. The penalties referred to in Orders 1 to 2 be paid to the Commonwealth of Australia within 28 days.

4. The First Respondent pay compensation to OneSteel Reinforcing Pty Ltd in the sum of $90,000 within 60 days of this order.

5. There be no order as to costs.

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

REASONS FOR JUDGMENT

BROMBERG J:

1. The applicant (Commissioner) seeks civil penalties and declarations in relation to contraventions of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) and 475(2) of the Fair Work Act 2009 (Cth) (FW Act). The first respondent (AWU) and the second respondent (Kelly) (collectively, the respondents) have admitted those...