Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: BANKS-SMITH J
• Judgment Date: 09 April 2020
• Neutral Citation: [2020] FCA 451
• Date: 09 April 2020

FEDERAL COURT OF AUSTRALIA

Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2020] FCA 451

File number:	WAD 145 of 2012
Judge:	BANKS-SMITH J
Date of judgment:	9 April 2020
Catchwords:	INDUSTRIAL LAW - contraventions of s 417(1) of Fair Work Act 2009 (Cth) - union organised unlawful industrial action by employees over two days - two contraventions - where same facts founded each declaration of contravention - pecuniary penalty - common law course of conduct principle - meaning of s 557(3) of the Fair Work Act 2009 (Cth) - single penalty to avoid double punishment - compensation - suspension of payment - injunction
Legislation:	Fair Work Act 2009 (Cth) ss 3, 19, 27, 44, 45, 417, 545, 546, 557 Fair Work (Registered Organisations) Act 2009 (Cth) s 79
Cases cited:	ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 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 Pauls [2017] FCA 843 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 7) [2016] FCAFC 181 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC8; (2008) 165 FCR 560 BHP Billiton Minerals Pty Ltd v Maritime Union of Australia [2014] FCA 1357 BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining & Energy Union [2001] FCA 336 Chevron Australia Pty Ltd v The Maritime Union of Australia (No 2) [2016] FCA 768 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652 Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 DP World Sydney Limited v Maritime Union of Australia (No 2) [2014] FCA 596 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1942 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521 Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153 SAS Trustee Corporation v Miles [2018] HCA 55 Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; (2016) 239 FCR 336 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union [2011] FCA 949; (2011) 220 FCR 551
Date of hearing:	4 October 2019
Registry:	Western Australia
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	128
Counsel for the Applicant:	Mr R Dalton SC with Mr B Millar
Solicitor for the Applicant:	Herbert Smith Freehills
Counsel for the Respondent:	Mr T Ritter SC
Solicitor for the Respondent:	Aaron Neal

ORDERS

		WAD 145 of 2012
BETWEEN:	CHEVRON AUSTRALIA PTY LTD (ACN 086 197 757) Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Respondent

JUDGE:	BANKS-SMITH J
DATE OF ORDER:	9 APRIL 2020

THE COURT ORDERS THAT:

1. Judgment is entered for the applicant.

2. The respondent pay to the applicant damages in the amount of $3,000,000 (inclusive of GST and interest) in compensation for the applicant's irrecoverable loss and damage suffered as a result of the respondent's contravention of s 417 of the FW Act, as described in Chevron Australia Pty Ltd v The Maritime Union of Australia (No 2) [2016] FCA 768 (Contravention), in accordance with order 5.

3. The respondent pay a pecuniary penalty to the applicant in respect of the Contravention in an amount of $30,000, in accordance with s 546 of the FW Act.

4. For a period of 10 years commencing on the date of these orders:

   1. the officers, officials and delegates of the Maritime Union of Australia Division are restrained from:

      1. organising or engaging in any industrial action; or

      2. being involved in any industrial action,

in or in connection with any Project; and

2. employees or agents of the respondent are restrained from engaging in any of the conduct referred to in (a)(i) or (a)(ii) above, where:

   1. they have engaged in that conduct at the direction or instruction of any officer, official or delegate of the Maritime Union of Australia Division; or

   2. any officer, official or delegate of the Maritime Union of Australia Division has organised, encouraged, counselled or procured them to engage in that conduct,

1. The damages are payable to the applicant immediately upon:

   1. any officer, official or delegate of the Maritime Union of Australia Division;

   2. any employee or agent of the respondent under the direction or control of any officer, official or delegate of the Maritime Union of Australia Division; or

   3. any MUA member under the direction or control of any officer, official, employee or agent of the respondent,

being found by a court of competent jurisdiction, in any proceedings whether brought by the applicant or not, to have engaged in or organised or been a person involved in industrial action, where that industrial action is in or in connection...