Fair Work Ombudsman (formerly Australian Building and Construction Commissioner) v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 17 January 2023
• Neutral Citation: [2023] FCA 13
• Date: 17 January 2023

Federal Court of Australia

Fair Work Ombudsman (formerly Australian Building and Construction Commissioner) v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) (No 2) [2023] FCA 13

File number:	ACD 29 of 2019
Judgment of:	KATZMANN J
Date of judgment:	17 January 2023
Catchwords:	INDUSTRIAL LAW — contravention of s 47(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) — where three union officials and the union admittedly engaged in an unlawful picket at a building site — reassessment of pecuniary penalty to be paid by the union after penalty imposed on union set aside following Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599; 96 ALJR 426; 314 IR 301 – where the union has a lengthy history of contravening industrial laws and adduced no evidence of contrition or corrective action, to what extent the penalty should be increased — significance of lack of evidence that contravening conduct was part of “an overarching campaign or demand”, as in Pattinson — where contravening conduct committed by members of ACT Branch of Construction and General Division of union, whether the fact that the Branch has not been found to have engaged in any further contravening conduct and one of the union officials is no longer an office-holder reduces the need for specific deterrence
Legislation:	Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 47(1), 81(2), 81(6) Crimes Legislation Amendment (Penalty Unit) Act 2017 (Cth) Sch 1 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) s 2(1), Sch 1 Pt 3 (Div 5) cll 318, 323
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654; 291 IR 286 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599; 96 ALJR 426; 314 IR 301 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining Energy Union [2001] FCA 336 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non Indemnification Personal Payment Case) (2018) 264 FCR 155 Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818; 198 IR 312 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR ¶41–993 Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580 Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308
Division:	Fair Work Division
Registry:	Australian Capital Territory
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	45
Date of hearing:	13 December 2022
Counsel for the Applicant:	Mr A Pollock
Solicitor for the Applicant:	Ashurst Australia
Counsel for the First Respondent:	Mr W L Friend KC with Mr C A Massy
Solicitor for the First Respondent:	Slater & Gordon Lawyers
Counsel for the Second, Third and Fourth Respondents:	The Second, Third and Fourth Respondents did not appear

ORDERS

		ACD 29 of 2019
BETWEEN:	FAIR WORK OMBUDSMAN( FORMERLY AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER) Applicant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent ; JASON O’MARA Second Respondent ; ZACHARY SMITH (and another named in the Schedule) Third Respondent

order made by:	KATZMANN J
DATE OF ORDER:	17 JANUARY 2023

PENAL NOTICE

TO: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION IF YOU (BEING THE PERSON BOUND BY THIS ORDER): REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT NOTES THAT:

1. Pursuant to s 323 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), the Fair Work Ombudsman is substituted as the applicant.

THE COURT ORDERS THAT:

1. The first respondent pay a penalty of $180,000 in respect of its contravention of s 47(1) of the Building Construction (Improving Productivity) Act 2016 (Cth) on 14 May 2018.

2. The penalty be paid to the Commonwealth of Australia within 28 days.

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1. This is a case about an unlawful picket. The case was brought by the Australian Building and Construction Commissioner under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) against the Construction, Forestry, Maritime, Mining and Energy Union (Union) and three of its employees and office-bearers (union officials). The parties reached agreement on a number of factual matters. In particular, the Union and the three union officials admitted that they engaged in an unlawful picket. Three matters remained in dispute. They concerned the number of contraventions committed by the Union, the amounts in which the respondents should be penalised, including the correct approach to the assessment of penalties, and whether personal payment orders should be made against the three union officials.

2. On 28 July 2020 I delivered judgment: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070. Amongst other things, I found that, although each of the three union officials contravened s 47(1) of the BCIIP Act, on the proper construction of s 94(1) of the BCIIP Act, the effect of which is that the conduct of a union official within the scope of his or her ostensible authority is conduct also engaged in by the Union, the Union contravened s 47(1) once only. I made orders for pecuniary penalties against all respondents. One of the orders (order 8) required the Union to pay a penalty of $126,000 in respect of its contravention of s 47(1), which represented 60% of the then statutory maximum of $210,000. In fixing that penalty I followed a number of Full Court judgments which stipulated that, although the overriding consideration in imposing a civil penalty is deterrence, the penalty must be proportionate to the gravity of the contravening conduct. The Commissioner appealed on a number of grounds. After the appeal was lodged, the High Court allowed an appeal by the Commissioner from a judgment in which five members of this Court endorsed the approach I had taken. That...