Parker v Australian Building and Construction Commissioner

• Jurisdiction: Australia Federal only
• Judgment Date: 05 April 2019
• Neutral Citation: [2019] FCAFC 56
• Date: 05 April 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Parker v Australian Building and Construction Commissioner [2019] FCAFC 56

Appeal from:	Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340 Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082; 270 IR 165
File number:	NSD 2227 of 2017
Judges:	BESANKO, REEVES AND BROMWICH JJ
Date of judgment:	5 April 2019
Catchwords:	INDUSTRIAL LAW – appeal and cross-appeal from liability and penalty judgment of the Federal Court of Australia – where primary judge imposed civil penalties on individuals for breaches of ss 50, 348, 355 and 417 of the Fair Work Act 2009 (Cth) – where legal liability for contraventions of individuals attributed to both the Construction, Forestry, Mining and Energy Union (CFMEU) and CFMEU NSW – whether primary judge had sufficient evidence to establish causal link between site meeting and non-attendance of workers to establish breach of s 417 – whether primary judge impermissibly relied upon conduct of appellants on second day to find industrial action on first day – whether primary judge failed to make findings necessary to conclude there was a breach of s 417 – whether insufficient evidence to find intention to coerce in breach of s 348 and s 355 – whether no obligation for appellants to engage in dispute resolution procedure and primary judge therefore erred in finding contravention of s 50 – held: appeal on liability grounds dismissed ; PRACTICE AND PROCEDURE – whether primary judge erred in striking out pleadings on accessorial liability for contravention of s 50 by reason of insufficient clarity – whether failure to address and determine claim that individual appellants had accessorial liability for CFMEU s 50 contravention arising from conduct of those individuals – whether primary judge failed to apply presumption in s 361 when dismissing s 348 claims against individuals – held: cross-appeal upheld in part – primary judge entitled to find pleaded allegation fell short of clarity required but obliged to consider pleaded allegation of accessorial liability for CFMEU contravention – declarations of contravention by individuals made without further penalty being imposed ; INDUSTRIAL LAW – whether primary judge erred in rejecting contention there was a single course of conduct at common law or under s 557 – whether primary judge erred in finding penalties imposed on individuals were appropriate in their totality – where primary judge imposed civil penalties in the maximum amount against the CFMEU and 75% of the maximum amount against the CFMEU NSW – whether primary judge should have grouped contraventions of the two Unions – whether penalties imposed on the Unions appropriate in their totality – whether primary judge erred in finding s 545 was a source of power to make publication order – whether s 23 of the Federal Court of Australia Act 1976 (Cth) did provide such a power if s 545 insufficient – whether primary judge erred in exercise of discretion in making publication order as no proper basis and so long after the event – held: appeal on penalty grounds upheld in part – primary judge gave extensive and careful consideration of conduct of individuals but omitted to give adequate attention to totality in relation to Unions – penalties treated attributed conduct as separate events each warranting penalties in the maximum or 75% of the maximum amount – needed to be account given to commonality and overlap of attributed conduct – held: penalties on CFMEU reduced to 75% of the maximum amount – penalties on CFMEU NSW reduced to 40% of the maximum amount – s 23 sufficient source of power to make publication order though regard must be had to the specific legislation giving rise to the seeking of the order – publication order set aside; not appropriate to make a replacement publication order in the circumstances
Legislation:	Acts Interpretation Act 1901 (Cth) s 2C(1) and s 15AB(1)(b) Evidence Act 1995 (Cth) s 140(2) Fair Work Act 2009 (Cth) ss 12, 19(1), 50, 51, 172, 347, 348, 355, 360, 361, 362, 417, 418, 546(1), 550, 556, 557, 793 Federal Court of Australia Act (Cth) s 23 Trade Practices Act 1974 (Cth) 75B (repealed) Explanatory Memorandum, Fair Work Bill 2008 (Cth)
Cases cited:	Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 358 ALR 683 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, Mining and Energy Union [2017] FCA 157; 267 IR 130 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 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 [2018] HCA 3; 262 CLR 157 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75 Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340 Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082; 270 IR 165 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Non-Indemnification Personal Payment Case) [2018] FCAFC 97 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184; 247 FCR 339 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1; 194 IR 461 Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; 262 ALR 417; 191 IR 445 Darlaston v Parker (No 2) [2010] FCA 1382; 200 IR 353 Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 Director of the Fair Work Building Inspectorate v Robinson [2016] FCA 525; 241 FCR 338 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Fox v Percy [2003] HCA 22; 214 CLR 118 General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433 Hamilton v Whitehead (1988) 166 CLR 121 House v...