Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Constitution Place Case)

The Australian Building and Construction Commissioner (Commissioner) brought proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and three of its officials, O'Mara, Smith and Bolitho, in the Federal Court of Australia. The Commissioner sought penalties for unlawful picketing at a building site in Canberra. The CFMMEU and its officials admitted engaging in unlawful picketing, but the parties disputed the number of contraventions, the appropriate penalty amount, and whether personal payment orders should be made against the officials. The Commissioner argued for three contraventions by the union, the maximum penalty, and personal payment orders against the officials, while the CFMMEU contended for a single contravention, a lower penalty, and no personal payment orders.

The court considered whether the union's conduct constituted one or three contraventions of the Building and Construction Industry (Improving Productivity) Act 2016. The court found that the union committed three separate contraventions, as each official acted independently in organising the picket. The court also assessed the penalty amount, taking into account the union's history of non-compliance, the principle of proportionality, and the role of mitigating factors. The court held that the union's history of non-compliance warranted a significant penalty, but proportionality required a discount. The court further held that the motivations of the union officials were not a mitigating factor, and personal payment orders were appropriate to prevent the union from indirectly paying the penalties.

The court ordered that each official personally pay a penalty: O'Mara and Smith each pay $12,600, and Bolitho pay $8,400. The court also ordered the union to pay a penalty of $126,000. The court further ordered that the officials not seek or receive any financial benefit from the union in relation to the penalties. The court's decision addressed the key issues in dispute and provided clear guidance on the assessment of penalties for unlawful picketing under the Building and Construction Industry (Improving Productivity) Act 2016.