Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: SNADEN J
• Judgment Date: 12 July 2019
• Neutral Citation: [2019] FCA 1070
• Date: 12 July 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070

File number:	ACD 79 of 2016
Judge:	SNADEN J
Date of judgment:	12 July 2019
Catchwords:	INDUSTRIAL LAW – admitted contravention of s 501 of the Fair Work Act 2009 (Cth) (the “FW Act”) – civil penalties – right of entry pursuant to pt 3-4 of the FW Act – whether entry was refused – meaning of the phrase ‘refuse entry’ – proportionality of penalty to contravening conduct – declaration of contravention of the FW Act – declaration sought by consent – principles relating to the making of a declaration – penalty imposed – no declaration made
Legislation:	Chancery Procedure Act 1852 (UK) s 50 Crimes Act 1914 (Cth) s 4AA Federal Court of Australia Act 1976 (Cth) s 21 Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work Act 2009 (Cth) ss 12, pt 3-4, 484, 492, 501, 512, 539, 546, 570
Cases cited:	A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCA 398 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 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 (“Cardigan Street Case”) [2018] FCA 957 Australian Competition and Consumer Commission v Chaste Corp Pty Ltd (in liq) [2005] FCA 1212 Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309 Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1 Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) (2011) 279 ALR 609 Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560 Australian Softwood Forests Pty Ltd v Attorney General (NSW); ex rel Corporate Affairs Commission (1981) 148 CLR 121 Carr v Higgins Coatings Pty Ltd (2005) 148 IR 201 Construction, Forestry, Mining, and Energy Union v Safety Glass Pty Ltd [2010] FCA 989 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 280 IR 28 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 Australian Competition and Consumer Commission (2007) 162 FCR 466 Cruse v Multiplex Ltd & Ors (2008) 172 FCR 279 De Belin v Australian Rugby League Commission Limited [2019] FCA 688 Director of Fair Work Building Industry Inspectorate v Stephenson & Ors (2014) 146 ALD 75 Ibeneweka v Egbuna [1964] 1 WLR 219 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services (2011) 243 CLR 361 Leonie’s Travel Pty Limited v International Air Transport Association (No 2) [2009] FCA 646 Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99 Markarian v The Queen (2005) 228 CLR 357 McLeish v Faure (1979) 25 ALR 403 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Ogawa v Attorney-General (No 2) [2019] FCA 1003 Re McDougall; Australian Securities and Investments Commission v McDougall (2006) 229 ALR 158 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 Sankey v Whitlam (1978) 142 CLR 1 Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 Warramunda Village v Pryde (2001) 105 FCR 437 Wellington Capital Limited v Australian Securities and Investments Commission (2014) 254 CLR 288 Wong v The Queen (2001) 207 CLR 584 Yau's Entertainment Pty Ltd v Asia Television Ltd (2002) 54 IPR 1 ; Justice Robert French, ‘Declarations – Homer Simpson’s remedy – is there anything they cannot do?’ [2007] FedJSchol 24 Zamir and Woolf, The Declaratory Judgment (Sweet & Maxwell, 4th ed, 2011)
Date of hearing:	14 June 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	103
Counsel for the Applicant:	Mr W.L. Friend QC with Mr Y.B. Bakri
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Mr I. Neil SC with Ms P. Bindon
Solicitor for the Respondent:	Clayton Utz
Counsel for the Intervener:	Mr M.J. Follett
Solicitor for the Intervener:	Minter Ellison

ORDERS

		ACD 79 of 2016
BETWEEN:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Applicant
AND:	MILIN BUILDERS PTY LTD First Respondent ; ALAN COURTNEY Second Respondent ; PAULA LATU (and another named in the Schedule) Third Respondent

JUDGE:	SNADEN J
DATE OF ORDER:	12 JULY 2019

THE COURT ORDERS THAT:

1. A pecuniary penalty of $15,000.00 be imposed upon the first respondent.

2. The penalty so imposed be paid to the applicant not later than 28 days from the date of these orders.

3. The proceeding be otherwise dismissed.

4. There be no order as to costs.

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

REASONS FOR JUDGMENT

SNADEN J:

1. The applicant is a large and well-known trade union. It is registered as an “organisation” under the Fair Work (Registered Organisations) Act 2009 (Cth). Broadly speaking, it represents and seeks to advance the industrial interests of (amongst others) employees who perform work in the construction industry. For the purposes of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”), it qualifies as an “employee organisation” (within the meaning attributed to that term by s 12 thereof).

2. The first respondent operates a construction business headquartered in the ACT. In February 2016, it was the principal in charge of constructing a multi-storey apartment building at premises located at 7 Irving Street, Phillip, ACT (hereafter, “the Site”). It employed a number of people to that end, some of whom were or were eligible to become members of the applicant. At that point in time (February 2016), the Site consisted of at least two distinct areas: a “high-risk zone”, which was secured by means of a fence; and the remainder of the Site, which was outside of that fenced area. The high-risk zone was accessible through a secured entrance that was unlocked by means of...