Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case)

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 15 March 2023
• Neutral Citation: [2023] FCAFC 40
• Date: 15 March 2023

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40

Appeal from:		ABCC v CFMMEU (No 3) (The Botany Cranes Case) [2021] FCA 363 ABCC v CFMMEU (The Botany Cranes Case) (No 4) [2021] FCA 525
File number:	NSD 579 of 2021
Judgment of:	BROMBERG, MOSHINSKy And BROMWICH JJ
Date of judgment:	15 March 2023
Catchwords:	INDUSTRIAL LAW – pecuniary penalties – where the ABCC brought proceedings against one union respondent and several individual respondents for contravention of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – where the case was narrowed following mediation – where the union and the remaining respondents (four officials of the union) admitted contravening provisions of the Act in relation to (among other things) a picket – whether, in circumstances where the four officials engaged in a single unlawful picket, and their conduct was taken to have been engaged in also by the union, the union committed four contraventions of each relevant provision or only one contravention of each relevant provision – whether the officials and the union were liable for more than one pecuniary penalty for the contraventions of ss 47 and 52 of the Act or only one pecuniary penalty – whether the primary judge imposed penalties based on intent to coerce as distinct from intent to apply undue pressure – appeal allowed in part
Legislation:	Building and Construction Industry Improvement Act 2005 (Cth), ss 38, 44, 49 Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss 5, 38, 47, 52, 54, 81, 83, 84, 91, 92, 94, 95 Conciliation and Arbitration Act 1904 (Cth), ss 44, 45 Evidence Act 1995 (Cth), s 191 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) Fair Work Act 2009 (Cth), ss 348, 355, 500, 546, 556, 557, 793
Cases cited:	Ah Toy v Registrar of Companies for the Northern Territory (1985) 10 FCR 280 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 Australian Building and Construction Commissioner v Australian Workers’ Union [2021] FCA 861; 308 IR 195 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 Constitution Place Case) [2020] FCA 1070; 299 IR 231 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Kiama Aged Care Centre Case) [2021] FCA 920; 309 IR 353 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Building and Construction Commissioner v Hall (2018) FCAFC 83; 216 FCR 347 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382; 279 ALR 609 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15 Broome v Director of Public Prosecutions [1974] AC 587 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (No 2) [2021] FCAFC 56 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201; 272 FCR 290 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini (No 2) [2017] FCA 1046 Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; 91 FCR 463 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra’s Edge Case) [2016] FCA 772 Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525; 241 FCR 338 Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; 263 CLR 551 Hamilton v Whitehead [1988] HCA 65; 166 CLR 121 John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; 174 FCR 526 Mallan v Lee [1949] HCA 48; 80 CLR 198 Optus Singtel Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 270 FCR 39 Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336 Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; 185 FCR 308 Trade Practices Commission v CSR Limited (1991) ATPR 41–076 Trade Practices Commission v ICI Australia Operations Pty Ltd (1991) 105 ALR 115 Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; 284 FCR 24 Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union (2011) 220 FCR 551
Division:		Fair Work Division
Registry:		New South Wales
National Practice Area:		Employment and Industrial Relations
Number of paragraphs:	240
Date of last submissions:	2 March 2023
Date of hearing:	1 and 2 August 2022
Counsel for the Appellants:	Mr H Borenstein KC with Mr P Boncardo
Solicitor for the Appellants:	Taylor & Scott Lawyers
Counsel for the Respondent:	Mr MS White SC with Mr M Seck
Solicitor for the Respondent:	Herbert Smith Freehills ...