Australian Building and Construction Commissioner v CFMMEU

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FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 549

File number: NSD 474 of 2019
Judge: FLICK J
Date of judgment: 28 April 2020
Catchwords: INDUSTRIAL LAW – penalties – agreement as to range – course of conduct – civil double jeopardy – totality principle  
Legislation:

Building and Construction Industry (Improving Productivity) Act2016 (Cth) ss 7, 46, 81, 83, 91, 417, 421

Fair Work Act2009 (Cth) ss 500, 546, 556

Petroleum Retail Marketing Sites Act 1980 (Cth) s 10

Cases cited:

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] FCAFC 113; (2017) 254 FCR 68

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, (2008) 165 FCR 560

Commonwealth v Director, Fair Work Building Industry Inspectorate[2015] HCA 46, (2015) 258 CLR 482

Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 1364, (2001) 108 IR 228

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9

DP World Sydney Ltd v Maritime Union of Australia (No 2) [2014] FCA 596, (2014) 318 ALR 22

Kelly v Fitzpatrick [2007] FCA 1080, (2007) 166 IR 14

Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357

Ministry for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285

Date of hearing: 12 November 2019
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 49
Counsel for the Applicant: Mr P M O’Grady with Mr M Seck
Solicitor for the Applicant: MinterEllison
Counsel for the First and Second Respondents: Mr I Latham
Solicitor for the First and Second Respondents: Taylor & Scott Lawyers

ORDERS

NSD 474 of 2019
BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant
AND:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Respondent

ANTHONY SLOANE

Second Respondent

BRENDAN HOLL

Third Respondent

JUDGE:

FLICK J

DATE OF ORDER:

28 APRIL 2020

THE COURT DECLARES THAT:

Anthony Sloane

1.The Second Respondent, an official of the First Respondent acting in that capacity for the purposes of s 94(1)(a) of the BCIIP Act, contravened s 46 of the BCIIP Act on 20 February 2018 by organising the Westform workers to engage in unlawful industrial action constituting the Stoppage at the Project Site.

2.The Second Respondent, an official of the First Respondent acting in that capacity for the purposes of s 793(1)(a) of the Fair Work Act, contravened s 500 of the Fair Work Act on 20 February 2019 by:

(a)hindering or obstructing each of…

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Details
Case
[2020] FCA 549
Decision Date

CaseChat Overview and Summary

The case before the court was between the Australian Building and Construction Commissioner and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMU). The dispute centred on penalties imposed on the CFMEU and its official, Anthony Sloane, for their involvement in unlawful industrial action and contraventions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and the Fair Work Act 2009 (Cth). The court had to determine the appropriate penalties for the CFMEU and Mr Sloane for their roles in the unlawful industrial action, which included a work stoppage and various other actions that obstructed work at a construction site.

The legal issues involved interpreting sections 556 and 91 of the Fair Work Act and sections 46 and 94 of the Building and Construction Industry (Improving Productivity) Act. The court had to consider whether separate penalties could be imposed for each contravention and whether an aggregated penalty for all contraventions would be excessive. The court also had to assess whether imposing separate penalties would violate principles such as the course of conduct and civil double jeopardy.

The court ruled that penalties should be imposed within the range agreed upon by the parties, but at the upper limit of that range. It determined that neither section 556 of the Fair Work Act nor section 91 of the Building Industry Act precluded the imposition of separate penalties for each contravention. However, an aggregated penalty for each contravention would not sufficiently account for the overlap in conduct and would be excessively high. The court applied the totality principle as a final check to ensure the penalties were not excessive. The penalties imposed were $168,000 on the CFMEU and $25,000 on Mr Sloane, with the declaratory relief also in the form as agreed. The court dismissed the proceedings with no orders as to costs.

Orders

Orders of the court

7. There be no orders as to costs.

8. The proceedings are otherwise dismissed.

Definitions

1. In these Declarations and Orders:

(a) BCIIP Act means the Building and Construction Industry (Improving Productivity) Act 2016 (Cth);

(b) Fair Work Act means the Fair Work Act 2009 (Cth);

(c) JJSL Agreement means the JJSL Labourforce Pty Ltd/CFMEU Collective Agreement 2017 – 2018

(d) Parkview means Parkview Constructions Pty Ltd, which was the principal contractor on the Project.

(e) Pay Claim means the pay dispute between Westform and its workers regarding payment for one hours pay on 10 February 2018, which was lost due to inclement weather;

(f) Project means the Mezzo Stage 2 Project and Project Site means 87 Bay Street, Glebe, New South Wales

(g) Stoppage means the failure or refusal by the Westform workers to carry out work on the Project between approximately 7.30am and 10.30am on 20 February 2019;

(h) Westform means Westform Formwork Contractors Pty Ltd, a subcontractor to Parkview on the Project.

(i) Westform workers means the workers employed by JJSL Labourforce Pty Ltd who were supplied to Westform to carry out work on the Project.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is further concluded that the totality principle should be applied as a “final check” on the penalties to be imposed. Although the conduct the subject of the contraventions of the two Acts falls outside of the phrase “particular conduct” as used in both ss 556 and 91, applying an aggregate penalty for each of the contraventions would be manifestly “excessive”. CONCLUSIONS It is concluded that it is appropriate to make orders imposing penalties within the range as agreed between the parties, albeit at the very upper limit of that which has been agreed. It is further concluded that neither s 556 of the Fair Work Act nor s 91 of the Building Industry Act preclude the imposition of separate penalties in respect to the contraventions of both Acts. An aggregated penalty for each contravention, however, would not take into account the extent to which the conduct falls within the course of conduct principle. And such an aggregated penalty would be manifestly excessive. It has ultimately been concluded that penalties should be imposed against the CFMMEU in the sum of $168,000 and against Mr Sloane in the sum of $25,000. The declaratory relief should also be in the form as agreed. THE COURT DECLARES THAT:Anthony Sloane1.The Second Respondent, an official of the First Respondent acting in that capacity for the purposes of s 94(1)(a) of the BCIIP Act, contravened s 46 of the BCIIP Act on 20 February 2018 by organising the Westform workers to engage in unlawful industrial action constituting the Stoppage at the Project Site.2.The Second Respondent, an official of the First Respondent acting in that capacity for the purposes of s 793(1)(a) of the Fair Work Act, contravened s 500 of the Fair Work Act on 20 February 2019 by:(a)hindering or obstructing each of Paul Neville, Daniel Kos, Michael Harbison and Tahir Mehmed from discharging their duties on the Project; and (b)by one or more of each of the following, acted in an improper manner:(i)organising the Stoppage;(ii)interrupting the pre-start meeting between Westform and the Westform workers;(iii)pursuing Pay Claim in circumstances where it had no merit;(iv)making the threat to organise the Stoppage unless the Pay Claim was resolved in favour of the Westform workers;(v)pursuing the Pay Claim other than in accordance with the disputes procedure in cl 27 of the JJSL Agreement (which covered the Westform workers);(vi)failing to give notice of entry in accordance with s 487 of the Fair Work Act to Parkview, as the occupier of the premises at the Project Site, and each of Westform and JSL as an affected employer; and(vii)contrary to s 484, holding discussions with the Westform workers outside mealtimes and other breaks.CFMMEU3.The First Respondent, by the conduct of the Second Respondent in the first declaration and by operation of s 94 of the BCIIP Act, contravened s 46 of the BCIIP Act on 20 February 2018 by organising the Westform workers to engage in unlawful industrial action constituting the Stoppage at the Project Site.4.The First Respondent, by the conduct of the Westform workers in engaging in the Stoppage and by operation of s 95(1)(c)(iii) of the BCIIP Act, contravened s 46 of the BCIIP Act on 20 February 2019 by engaging in unlawful industrial action constituting the Stoppage;5.The First Respondent, by the conduct of the Second Respondent in the second declaration and by operation of ss 793 and 550 of the Fair Work Act, was knowingly concerned in the Second Respondent’s contravention of s 500 and, accordingly, has itself contravened s 500 of the Fair Work Act.THE COURT ORDERS THAT:CFMMEU1.The First Respondent pay to the Commonwealth of Australia a penalty of $75,000 in respect of its contravention of s 46 of the BCIIP Act as declared in para 3 of the Declarations.2.The First Respondent pay to the Commonwealth of Australia a penalty of $75,000 in respect of its contravention of s 46 of the BCIIP Act as declared in para 4 of the Declarations.3.The First Respondent pay to the Commonwealth of Australia a penalty of $18,000 in respect of its contravention of s 500 of the Fair Work Act as declared in para 5 of the Declarations.Anthony Sloane4.The Second Respondent pay to the Commonwealth of Australia a penalty of $20,000 in respect of his contravention of s 46 of the BCIIP Act as declared in para 1 of the Declarations.5.The Second Respondent pay to the Commonwealth of Australia a penalty of $5,000 in respect of his contravention of s 500 of the Fair Work Act as declared in para 2 of the Declarations.Times for payment6.The penalties in Orders 1 to 5 above are payable to the Commonwealth of Australia within 28 days.AND THE COURT ORDERS THAT:7. There be no orders as to costs.8. The proceedings are otherwise dismissed.Definitions1. In these Declarations and Orders:(a)BCIIP Act means the Building and Construction Industry (Improving Productivity) Act 2016 (Cth);(b)Fair Work Act means the Fair Work Act 2009 (Cth);(c)JJSL Agreement means the JJSL Labourforce Pty Ltd/CFMEU Collective Agreement 2017 – 2018 (d)Parkview means Parkview Constructions Pty Ltd, which was the principal contractor on the Project.(e)Pay Claim means the pay dispute between Westform and its workers regarding payment for one hours pay on 10 February 2018, which was lost due to inclement weather;(f)Project means the Mezzo Stage 2 Project and Project Site means 87 Bay Street, Glebe, New South Wales(g)Stoppage means the failure or refusal by the Westform workers to carry out work on the Project between approximately 7.30am and 10.30am on 20 February 2019;(h)Westform means Westform Formwork Contractors Pty Ltd, a subcontractor to Parkview on the Project.(i)Westform workers means the workers employed by JJSL Labourforce Pty Ltd who were supplied to Westform to carry out work on the Project.

Ratio Decidendi

Legal Principle Established

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