Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 13 August 2021
• Neutral Citation: [2021] FCA 951
• Date: 13 August 2021

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951

File number:	SAD 60 of 2020
Judgment of:	WHITE J
Date of judgment:	13 August 2021
Catchwords:	INDUSTRIAL LAW – admitted contraventions of ss 345, 497, 500 and 503 of the Fair Work Act 2009 (Cth) – determination of penalties – relevant considerations in determining appropriate penalties – consideration of relevance of a reckless state of mind – consideration of relevance of pursuit of a legitimate purpose – whether contraventions occurred in a single course of conduct.
Legislation:	Crimes Act 1914 (Cth) s 4AA Fair Work Act 2009 (Cth) ss 12, 341, 345, 363, 480, 483A, 483D, 487, 490, 492,494, 495, 497, 499, 500, 501, 502, 503, 512, 513, 518, 546, 550, 556, 793 Fair Work (Registered Organisations) Act 2009 (Cth) s 27 Tax Agents Services Act 2009 s 50‑20 Work Health and Safety Act 2012 (SA) ss 3, 4, 5, 19, 116, 117, 118, 119, 120, 132
Cases cited:	Ashe v The Queen [2010] VSCA 119 Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 Australian Building and Construction Commissioner v Construction Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 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 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802; (2017) 252 FCR 198 Australian Building and Construction Commissioner v Gava [2018] FCA 1480 Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 Australian Building and Construction Commissioner v McDermott (No 3) [2018] FCA 1105 Australian Building and Construction Commissioner v Menon [2020] FCA 1418 Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 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 [2019] FCAFC 201; (2019) 272 FCR 290 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; (2018) 265 FCR 208 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203 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 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7 Construction, Forestry, Maritime, Mining and Energy Union v Kyren Pty Ltd [2020] FCA 1356 Director, Fair Work Building Industry Inspectorate v Construction Forestry, Mining and Energy Union [2015] FCAFC 59; (2015) 229 FCR 331 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934, (2018) 280 IR 173 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 384 ALR 75 R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 R v Dean [2013] NSWSC 1027 R v McInerney (1986) 42 SASR 11 R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 Retail & Fast Food Workers’ Union Inc v Tantex Holdings Pty Ltd [2020] FCA 1258; (2020) 299 IR 56 Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 Stewart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; (2010) 185 FCR 308 Tax Practitioners’ Board v Li [2015] FCA 233
Division:	Fair Work Division
Registry:	South Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	217
Date of hearing:	23 June 2021
Counsel for the Applicant:	Mr M Felman with Ms N Campbell
Solicitor for the Applicant:	Minter Ellison
Counsel for the First to Fourth, Sixth, Ninth and Tenth Respondents:	Mr C Dowling SC with Mr P Boncardo
Solicitor for the First to Fourth, Sixth, Ninth and Tenth Respondents:	Lieschke Weatherill

ORDERS

		SAD 60 of 2020
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; ADRIAN LEE MCMANUS Second Respondent ; ALEX TADIC (and others named in the Schedule) Third Respondent

order made by:	WHITE J
DATE OF ORDER:	13 august 2021

THE COURT DECLARES THAT:

3 April 2019

1. The Third Respondent (Mr Tadic) contravened s 345 of the Fair Work Act 2009 (Cth) (the FW Act) on 3 April 2019 at the Adelaide Airport Redevelopment Terminal 1 Expansion Project on James Schoefield Drive (the Site) by recklessly making a false or misleading statement to a Watpac Pty Ltd (Watpac) representative that “We don't have to show these to you” in response to a request by that representative that he produce his entry permit when he knew that it was likely that it was correct that Watpac was entitled to inspect, on request, entry permits prior to, or during, the exercise of a “State or Territory OHS right”.

2. The First Respondent (the CFMMEU) contravened s 345 of the FW Act on 3 April 2019, pursuant to ss 363 of the FW Act, by the conduct of Mr Tadic which is the subject of the first Declaration.

3. The Second Respondent (Mr McManus) contravened s 345 of the FW Act on 3 April 2019, by being involved, within the meaning of s 550 of the FW Act, in the conduct of Mr Tadic which is the subject of the first Declaration.

4. The CFMMEU contravened s 345 of the FW Act on 3 April 2019, pursuant to s 363 of the FW Act, by the conduct of Mr McManus which is the subject of the third Declaration.

5. The Fourth Respondent (Mr Sloane) contravened s 345 of the FW Act on 3 April 2019, by being involved, within the meaning of s 550 of the FW Act, in the conduct of Mr Tadic which is the subject of the first Declaration.

6. The CFMMEU contravened s 345 of the FW Act on 3 April 2019, pursuant to s 363 of the FW Act, by the conduct of Mr Sloane which is the subject of the fifth Declaration.

7. Mr McManus contravened s 497 of the FW Act on 3 April 2019 at the Site by failing to produce...