Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 14 February 2020
• Neutral Citation: [2020] FCAFC 9
• Date: 14 February 2020

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal)

[2020] FCAFC 9

Appeal from:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime and Energy Union [2018] FCA 42 Australian Building and Construction Commissioner v Construction, Forestry, Maritime and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563
File number:	NSD 2247 of 2018
Judges:	REEVES, RANGIAH AND BROMWICH JJ
Date of judgment:	14 February 2020
Catchwords:	INDUSTRIAL LAW – appeal from liability and penalty decisions of a judge of the Federal Court of Australia – quantification of penalties – identification of contract for services and prejudice for adverse action arising from a threat to take industrial action – application of the course of conduct principle to industrial action on consecutive days –– application of s 556 to separate contraventions – totality and whether a judge’s statement that it has been considered should be accepted – parity in relation to a respondent who is in a markedly different position to other respondents – whether loss and cost must be quantifiable on the evidence before it can be taken into account
Legislation:	Fair Work Act 2009 (Cth) s 340, s 342, s 343, s 494, s 499, s 500, s 556, s 557, s 793 Federal Court Act 1976 (Cth) s 23 Workplace Relations Act 1996 (Cth) s 298K
Cases cited:	Australian Building and Construction Commissioner v Pauls at [2017] FCA 843 Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 363 ALR 246 Australasian Meat Industry Employees’ Union v Meneling Station Pty Ltd (1987) 16 IR 245 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 (No 2) [2018] FCA 1211 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977 Australian Building and Construction Commissioner v Pauls at [2017] FCA 843 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201 Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17; 174 FCR 237 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 365 ALR 402 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30;195 CLR 1 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; 221 FCR 153
Date of hearing:	19 August 2019
Registry:	New South Wales
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	55
Counsel for the Appellants:	Mr T Game SC with Mr I Latham
Solicitor for the Appellants:	Taylor & Scott Lawyers
Counsel for the Respondent:	Mr Y Shariff with Ms V Bulut
Solicitor for the Respondent:	Corrs Chambers Westgarth

Table of Corrections
17 March 2020	In Order 2, “Declarations 12 and 16” have been deleted and “Declaration 17” inserted in lieu thereof
17 March 2020	A new Order 3 is inserted as follows: “Order 2 made on 13 November 2018 be amended to read “The Court orders that the Second Respondent, Darren Taylor, pay a penalty of $8,000 to the Commonwealth within 28 days of making these orders.”
17 March 2020	Orders 3, 4 and 5 are renumbered 4, 5 and 6
17 March 2020	The heading above [13] has been amended by deleting “Mr Kera” and inserting “Mr Taylor” in lieu thereof
17 March 2020	Paragraph [13] has been deleted and replaced with: “Ground 3 is conceded by the Commissioner, who accepts that the primary judge found the contravention by Mr Kera was made out by reference to agreement or joint enterprise reasoning in sending the “Eenie meenie miney mo!” text message, and that Mr Taylor was involved in that contravention. This went beyond the “knowingly concerned” case that was run by the Commissioner at trial against Mr Taylor. The case run in that way had to fail because his Honour was not willing to infer that the contents of Mr Taylor’s threats, when read with the content of Mr Kera’s text message, meant that the two men had to have had, in effect, a coordinating conversation. As the Commissioner conceded, the evidence fell short of establishing that Mr Taylor had knowledge that Mr Kera was going to send the text message. It follows that declaration 17 must be set aside and the corresponding penalty of $3,000 imposed for being involved in Mr Kera’s contravention be removed by reducing the penalty imposed upon Mr Taylor by $3,000 so that it is $8,000.”

ORDERS

		NSD 2247 of 2018
BETWEEN:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Appellant ; DARREN TAYLOR Second Appellant ; ROBERT KERA (and others named in the Schedule) Third Appellant
AND:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Respondent

JUDGES:	REEVES, RANGIAH AND BROMWICH JJ
DATE OF ORDER:	14 february 2020

THE COURT ORDERS THAT:

1. Appeal grounds 3, 14 and 15 be upheld.

2. Declaration 17 made on 15 March 2018 be set aside.

3. Order 2 made on 13 November 2018 be amended to read “The Court orders that the Second Respondent, Darren Taylor, pay a penalty of $8,000 to the Commonwealth within 28 days of making these orders”.

4. Orders 9 and 10 made on 13 November 2018 be set aside.

5. The appeal otherwise be dismissed.

6. The stay order (order 11 made on 13 November 2018) be discharged.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. This is an appeal against two judgments: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 (the liability judgment (LJ)) and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 (the penalty judgment (PJ)).

2. Not all of the respondents to the primary proceedings are appellants in this appeal. The grounds...