Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NEXT DC P2 Project Case)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 31 January 2022
• Neutral Citation: [2022] FCA 37
• Date: 31 January 2022

Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NEXT DC P2 Project Case) [2022] FCA 37

File number:	WAD 197 of 2020
Judgment of:	BANKS-SMITH J
Date of judgment:	31 January 2022
Catchwords:	INDUSTRIAL LAW - admitted contravention of s 500 of the Fair Work Act 2009 (Cth) - imposition of an appropriate penalty on the union for the improper conduct of its official - where official on site for period without escort - where official failed to comply with request to move - where contravention is relatively minor - where official has subsequently undertaken training - relevance of prior contraventions in assessing the seriousness of the contravention
Legislation:	Fair Work Act 2009 (Cth) ss 12, 500, 512, 513, 546, 793, Part 3‑4 Industrial Relations Act 1979 (WA) ss 49I, 49J Occupational Health and Safety Act 1984 (WA) ss 19, 22
Cases cited:	Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Toowoomba Bypass Case) [2021] FCA 1128 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Queensland Infrastructure Case) [2017] FCAFC 113; (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Webb Dock Case) [2017] FCA 62 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2017] FCA 1555 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Australian Federation of Air Pilots v HNZ Australia Pty Ltd [2015] FCA 755 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Division:	Fair Work Division
Registry:	Western Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	90
Date of hearing:	29 October 2021
Counsel for the Applicant:	Mr M Felman
Solicitor for the Applicant:	Clayton Utz
Counsel for the Respondent:	Mr DJ Rafferty
Solicitor for the Respondent:	Eureka Lawyers

ORDERS

		WAD 197 of 2020
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Respondent

order made by:	BANKS-SMITH J
DATE OF ORDER:	31 january 2022

THE COURT HAVING PREVIOUSLY MADE A DECLARATION, THE COURT FURTHER ORDERS THAT:

1. The respondent pay a pecuniary penalty of $18,000 in respect of the declared contravention.

2. The pecuniary penalty be paid to the Commonwealth of Australia within 28 days.

3. 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

BANKS-SMITH J:

1. The Australian Building and Construction Commissioner seeks the imposition of a penalty against the Construction, Forestry, Maritime, Mining and Energy Union for admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) (FW Act).

2. The conduct the subject of the admitted contravention arose out of actions taken by Stephen Parker, a Union employee and officer, at a workplace site in Perth for an eight-storey data centre facility, known as the NEXT DC P2 Project, on 5 December 2019. The contravention is recorded by way of a declaration made by the Court with the consent of the parties on 2 July 2021 in these terms:

On 5 December 2019, the respondent (CFMMEU), by operation of ss 550 and 793 of the Fair Work Act 2009 (Cth) (FW Act), contravened s 500 of the FW Act by reason of its permit holder, Mr Stephen Barry Parker, whilst exercising his entry rights in accordance with Part 3-4 of the FW Act at the NEXT DC P2 Project located at 105 Lord Street in Perth, Western Australia (Site), acting in an improper manner by:

(a) remaining on Site without an escort by a Multiplex representative; and

(b) not complying with requests by Multiplex employees to move from where he was standing when the Multiplex employees were unloading doorframes from a truck.

3. An order was also made by consent for the Union at its cost to arrange for each of its permit holders based in Western Australia, and employed to work in its Construction and General Division, to attend training delivered by a third party with qualifications in industrial relations, canvassing the obligations of a permit holder under Part 3-4 of the FW Act.

Statutory context

4. Section 500 of the FW Act provides:

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

5. Section 793 of the FW Act relevantly provides:

(1) Any conduct engaged in on behalf of a body corporate:

(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

6. Section 500 of the FW Act is a civil remedy provision, and it was not in issue that the maximum penalty that may be imposed on the Union is $63,000.

The circumstances of the contravention

7. The parties filed two statements of agreed facts. The following facts are collected from those statements.

8. Multiplex Australasia Pty Ltd was the head contractor...