Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 15 November 2019
• Neutral Citation: [2019] FCAFC 201
• Date: 15 November 2019

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201

Appeal from:	Australian Building and Construction Commissioner v Hassett [2019] FCA 855
File number:	TAD 26 of 2019
Judges:	BROMBERG, WHEELAHAN AND SNADEN JJ
Date of judgment:	15 November 2019
Catchwords:	INDUSTRIAL LAW – s 556 of the Fair Work Act 2009 (Cth) (“FW Act”) – civil double jeopardy – penalties imposed under ss 499 and 500 – conduct constituting one contravention wholly subsumed within the conduct constituting the other – whether s 556 is only engaged where there is a complete overlap between the conduct (physical acts and omissions) which constitutes each relevant contravention – whether “conduct” in s 556 should be understood as not merely a reference to physical acts and omissions but also to elements of character or circumstance relevant to a given contravention – common law principles of double jeopardy discussed – whether, as a matter of fact, the penalties imposed in respect of the s 500 contravention were not in any way referable to the conduct constituting the contraventions of s 499 – appeal allowed
Legislation:	Fair Work Act 2009 (Cth): ss 499, 500, 556
Cases cited:	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 Baini v The Queen (2012) 246 CLR 469 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Lacey v Attorney-General of Queensland (2011) 242 CLR 573 Lecornu v The Queen (2012) 36 VR 382 Mitchell v Latrobe Regional Hospital (2016) 51 VR 581 Ogden Industries Pty Ltd v Lucas [1970] AC 113 Pearce v The Queen (1998) 194 CLR 610
Date of hearing:	15 November 2019
Registry:	Tasmania
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	35
Counsel for the Appellants:	Ms F Forsyth QC with Mr P Boncardo
Solicitor for the Appellants:	Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr J Bourke QC with Mr M Felman
Solicitor for the Respondent:	Australian Building and Construction Commission

ORDERS

		TAD 26 of 2019
BETWEEN:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Appellant ; RICHARD HASSETT Second Appellant
AND:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Respondent

JUDGES:	BROMBERG, WHEELAHAN AND SNADEN JJ
DATE OF ORDER:	15 NOVEMBER 2019

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Orders 7 and 10 of the orders made below on 6 June 2019 are set aside.

3. There be no order as to the costs of the appeal.

4. The appeal be otherwise dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1. The appeal concerns admitted contraventions of ss 499 and 500 of the Fair Work Act 2009 (Cth) (“FW Act”) by the second appellant (“Hassett”) and derivative and admitted contraventions of those provisions by Hassett’s employer, the first appellant (“CFMMEU”). The only aspect of the Amended Notice of Appeal which it is necessary to address is that stated in ground 1, that the primary judge erred in construing s 556 of the FW Act in:

1. holding that it did not apply in circumstances where the conduct constituting Hassett’s and the CFMMEU’s contraventions of s 499 of the FW Act on 5 June 2017 was a component of the conduct encompassing their contraventions of s 500 of the FW Act on 5 June 2017; and

2. failing to hold that, if the court imposed a penalty for Hassett’s and the CFMMEU’s s 499 contravention on 5 June 2017, that the conduct constituting that contravention was unable to be considered in imposing a penalty for the s 500 contravention.

2. Section 499 of the FW Act relevantly provides:

Occupational health and safety requirements

A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

3. Section 500 of the FW Act relevantly provides:

Permit holder must not hinder or obstruct

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.

4. Section 556 of the FW Act relevantly provides:

Civil double jeopardy

If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.

5. By an Amended Notice of Contention, the respondent has sought to raise a matter not argued before the primary judge, namely that the application of s 556 of the FW Act is informed by the common law principle of double jeopardy, and that the provision is only engaged when the underlying wrongful conduct of two contraventions is the same, and that here, it was not. A further new argument dealt with later in these reasons was raised orally on the appeal. We grant the respondent leave to file the Amended Notice of Contention out of time and further, on the basis that it is expedient in the interest of justice to do so, we grant leave for the respondent to raise and rely upon the contentions not relied upon before the primary judge.

6. The relevant facts can be shortly stated. The respondent made allegations to the effect, and the appellants admitted, that on 5 June 2017, whilst in attendance at a construction site in Devonport, Tasmania:

1. Hassett climbed on a crane whilst it was in operation;

2. Hassett refused a request of the occupier at the site to get off the crane (which request was reasonable because it was unsafe to be on the crane whilst it was being operated—that conduct is defined in the Amended Statement of Claim as the “5 June OHS Request”); and

3. Hassett used insulting language and engaged in abusive behaviour.

7. By reason of the conduct in (i), the appellants were found to have contravened s 499 of the FW Act. By reason of the conduct in (i), (ii) and (iii), the appellants were found to have contravened s 500 of the FW Act.

8. The appellants contended before the primary judge that because Hassett’s conduct that established the contravention of s 499 (refusing the reasonable request to get off the crane) was also an element of the contravention of s 500, s 556 applied and only one penalty could be imposed on each of the appellants in relation to that particular conduct.

9. The primary judge rejected that contention. At [48]-[50] of his Honour’s reasons for judgment, the primary judge referred to the reasoning of Tracey J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211 at [40]-[43], and in essence, concluded that the conduct constituting the contravention of ss 499 and 500 was not the same conduct for the purposes of s 556 because of the more expansive nature of the conduct constituting the contravention of s 500.

10. For the following reasons, and with respect to the primary judge, we have concluded that his Honour erred.

11. There are three issues to address.

12. The first is whether the primary judge was correct to construe s 556 as only being...