Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Toowoomba Bypass Case)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 17 September 2021
• Neutral Citation: [2021] FCA 1128
• Date: 17 September 2021

Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Toowoomba Bypass Case) [2021] FCA 1128

File number:	QUD 785 of 2018
Judgment of:	RANGIAH J
Date of judgment:	17 September 2021
Catchwords:	INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – where Union and Union officials admitted contraventions of ss 494(1) and 500 – where declaratory relief and imposition of pecuniary penalties sought by Commissioner – determination of appropriate declarations – determination of appropriate penalties – where personal payment orders sought against Union officials – personal payment orders not made
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth) Fair Work Act 2009 (Cth) ss 494, 497, 499, 500, 512, 546, 550, 793 Work Health and Safety Act 2011 (Qld) s 81(3)
Cases cited:	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 (No 2) [2019] FCA 938 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214; (2020) 280 IR 356 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737; (2019) 292 IR 259 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, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2018] FCA 553 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Building and Construction Commissioner v Gava [2018] FCA 1480 Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 Construction, Forestry, Maritime, Mining and Energy Union & Ors v Australian Building and Construction Commissioner & Anor [2021] HCASL 60 (8 April 2021) Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203; (2020) 302 IR 106 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 Cruse v Multiplex Ltd (2008) 172 FCR 279 Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668; (2015) 147 ALD 373 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 299 IR 404 R v Byrnes and Hopwood (1995) 183 CLR 501
Division:	Fair Work Division
Registry:	Queensland
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	117
Date of hearing:	17 August 2021
Counsel for the Applicant:	Mr M Follett
Solicitor for the Applicant:	Ashurst Australia
Counsel for the Respondents:	Mr J Agius SC with Mr P Boncardo
Solicitor for the Respondents:	Hall Payne Lawyers

ORDERS

		QUD 785 of 2018
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; KURT PAULS Second Respondent ; BEAU SEIFFERT (and others named in the Schedule) Third Respondent

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

PENAL NOTICE ; TO: THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION, KURT PAULS, BEAU SEIFFERT, TE ARANUI ALBERT, BLAKE HYNES, SHAUN DESMOND, CRAIG DAVIDSON, JUSTIN STEELE AND MICHAEL DAVIS ; 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.

In these Orders:

(i) “FW Act” means the Fair Work Act 2009 (Cth).

(ii) “Federal entry permit” means an entry permit issued by the Fair Work Commission to an official of an organisation under s 512 of the FW Act.

(iii) “Site” means the construction site area of the Toowoomba Second Range Crossing Project referred to in paragraph 13 of the Amended Statement of Claim filed on 15 June 2021.

(iv) “State or Territory OHS right” means a right to enter premises under s 81(3) of the Work Health and Safety Act 2011 (Qld) (WHS Act), being a State or Territory OHS right within the meaning of s 494(2) of the FW Act.

THE COURT DECLARES THAT:

The second respondent – Kurt Pauls

1. On 30 April 2018, 1 May 2018 and on the morning and again on the afternoon of 2 May 2018, the second respondent contravened s 494(1) of the FW Act by exercising a State or Territory OHS right by entering the Site when he was not a permit holder within the meaning of the FW Act.

The third respondent - Beau Seiffert

2. On 30 April 2018 and 1 May 2018, the third respondent contravened s 500 of the FW Act when exercising a State or Territory OHS right, by acting in an improper...