Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal)

• Jurisdiction: Australia Federal only
• Judgment Date: 02 May 2019
• Neutral Citation: [2019] FCAFC 69
• Date: 02 May 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69

Appeal from:	Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934
File number:	NSD 1248 of 2018
Judges:	FLICK, ROSS AND RANGIAH JJ
Date of judgment:	2 May 2019
Catchwords:	INDUSTRIAL LAW – appeal from a single judge of the Federal Court – civil remedy provision – pecuniary penalties – meaning of s 557(3) of the Fair Work Act 2009 (Cth) – course of conduct principle – appeal upheld
Legislation:	Acts Interpretation Act 1901 (Cth) s 15AA Conciliation and Arbitration Act 1904 (Cth) s 119(1A) Fair Work (Registered Organisations) Act 2009 (Cth) s 79 Fair Work Act 2009 (Cth) ss 40A, 417, 539, 546, 556, 557, Pt 4-1 Industrial Relations Act 1988 (Cth) s 178 Workplace Relations Act 1996 (Cth) ss 494, 719
Cases cited:	Accident Insurance Mutual Ltd v Sullivan (1986) 7 NSWLR 65 Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 351 ALR 190 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 (Perth International Airport Case) Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Queensland Children’s Hospital case) (2017) 271 IR 321 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Nine Brisbane Sites Appeal) [2019] FCAFC 59 Australian Building and Construction Commissioner v Pauls [2017] FCA 843 Australian Competition and Consumer Commission (ACCC) v Yazaki Corporation [2018] FCAFC 73; (2018) 357 ALR 55 Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223 Cahill v Construction Forestry Mining and Energy Union (No 2) (2008) 170 FCR 357 Chevron Australia Pty Ltd v Maritime Union of Australia (No 2) [2016] FCA 768 Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd (2004) 139 FCR 147 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Coleman v Power (2004) 220 CLR 1 Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2016] FCA 727 Dix v Crimes Compensation Tribunal [1993] 1 VR 297 DP World Sydney Limited v Maritime Union of Australia (No 2) [2014] FCA 596 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Fair Work Ombudsman v Lohr (2018) 356 ALR 424 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363 Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 Flavel v RailPro Services Pty Ltd (No 2) [2013] FCCA 1449 Gardner v Jay (1885) 29 ChD 50 House v The King (1936) 55 CLR 499 IW Applicant v The City of Perth (1997) 191 CLR 1 JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297 JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 Kennewell v MG & CG Atkins T/as Cardinia Waste & Recyclers [2015] FCA 716 Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 Maritime Union of Australia v Fair Work Ombudsman and Skilled Offshore (Australia) Pty Ltd [2015] FCAFC 120 Mills v Meeking (1990) 169 CLR 214 Nilant v Macchia (2000) 104 FCR 238 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Potter v Minahan (1908) 7 CLR 277 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Qantas Airways Ltd v Transport Workers' Union of Australia (No 2) [2011] FCA 816 R v L (1994) 49 FCR 534 Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 Rocky Holdings Pty Limited v Fair Work Ombudsman (2014) 221 FCR 153 Royer v Western Australia [2009] WASCA 139 Secretary, Department of Social Security v Knight (1996) 72 FCR 115 Shizas v Commissioner of Police ([2017] FCA 61 SZTAL v Minister for Immigration and Border Protection (SZTAL) [2017] HCA 34 Thompson v Gould & Co [1910] AC 409 Tomlinson v Ramsay Food Processing Pty Limited (2015) 256 CLR 507 Transport Workers’ Union of Australia v Registered Organisations Commissioner [No 2] [2018] FCAFC 203; 363 ALR 464 Waugh v Kippen (1986) 160 CLR 156
Date of hearing:	14 November 2018
Registry:	New South Wales
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	193
Counsel for the Appellant:	Mr J Bourke QC with Mr M Seck
Solicitor for the Appellant:	Fair Work Ombudsman
Counsel for the Respondent:	Mr B Walker SC with Mr T Slevin
Solicitor for the Respondent:	Slater and Gordon

ORDERS

		NSD 1248 of 2018
BETWEEN:	FAIR WORK OMBUDSMAN Appellant
AND:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Respondent

JUDGES:	FLICK, ROSS AND RANGIAH JJ
DATE OF ORDER:	2 MAY 2019

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders of the primary judge are set aside.

3. The matter is remitted to the primary judge to determine the issue of penalty.

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

REASONS FOR JUDGMENT

FLICK J:

1 In November 2017, the primary Judge published her reasons for concluding that the former Maritime Union of Australia (“MUA”) contravened s 417 of the Fair Work Act 2009 (Cth): Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363. In June 2018, her Honour published reasons for imposing penalties and for not ordering compensation: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934.

2 The Fair Work Ombudsman now appeals. An Amended Notice of Appeal set forth nine Grounds of...