Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 3)

[2021] FCA 1267

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 3) [2021] FCA 1267  

File number:

VID 496 of 2018

Judgment of:

SNADEN J

Date of judgment:

18 October 2021

Catchwords:

PRACTICE AND PROCEDURE – relief in the form of pecuniary penalties granted – application for stay in respect of order pending appeal – notice of appeal contemplates partial challenge of court’s judgment – portion of pecuniary penalties to remain payable irrespective of outcome of appeal – whether or two what extent orders might be stayed – applicant consents to partial stay – partial stay granted

Legislation:

Fair Work Act 2009 (Cth) ss 499, 500

Federal Court Rules 2011 (Cth) r 41.03

Cases cited:

Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101

Beijing Be Green Import & Export Co Ltd v Elders International Australia Pty Ltd (2014) 323 ALR 703

Coshott v Prentice [2013] FCA 1085

Elders International Australia Pty Ltd v Beijing Be Green Import & Export Co Ltd (2014) 324 ALR 194

Division:

Fair Work Division

Registry:

Victoria

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

10

Date of hearing:

Determined on the papers

Solicitor for the Applicant:

Kingston Reid

Solicitor for the Respondents:

CFMMEU

Table of Corrections
20 October 2021	Order 1, line 4, the word “them” was replaced by the words “the first and second respondents”

ORDERS

VID 496 of 2018

BETWEEN:

THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

AND:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Respondent

JAMES SIMPSON

Second Respondent

PETER CLARK

Third Respondent

ORDER MADE BY:	SNADEN J
DATE OF ORDER:	18 OCTOBER 2021

THE COURT ORDERS THAT:

1.Pursuant to r 41.03 of the Federal Court Rules 2011 or, alternatively, the court’s inherent jurisdiction, the court’s orders of 14 September 2021 (the “14 September Orders”) are, hereby, and until the determination of the appeal in VID 589 of 2021 or further order (whichever occurs first), stayed insofar as concerns the pecuniary penalties imposed upon each of the first and second respondents in respect of conduct in which they engaged on Thursday, 9 May 2017 at the “Gate 3 Site” (as that term is understood within the court’s reasons for judgment).

2.For the avoidance of doubt, order 1 shall have the effect of:

(a)temporarily relieving the first respondent of its obligation to pay $25,650.00 of the $47,250 that it was ordered to pay by the 14 September Orders;

(b)temporarily relieving the second respondent of his obligation to pay $4,050.00 of the $7,290.00 that he was ordered to pay by the 14 September Orders.

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

REASONS FOR JUDGMENT

SNADEN J:

1. On 2 December 2020, the court published reasons for its judgment in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727 (the “Liability Judgment”), by which it concluded that each of the first and second respondents had engaged in conduct in contravention of ss 499 and 500 of the Fair Work Act 2009 (Cth) (the “FW Act”).  Those contraventions concerned conduct that took place across two separate episodes:  one that took place on the evening and early morning of Saturday, 29 and Sunday, 30 April 2017; and one that took place on Thursday, 9 May 2017.

2. In consequence of the Liability Judgment, the matter proceeded as against the first and second respondents for the purposes of assessing what relief should be granted in connection with the contravening that had been established.  On 14 September 2021, the court made final orders related to that conduct:  Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101 (the “Penalty Judgment”).

3. By the Penalty Judgment, each of the respondents was ordered to pay to the Commonwealth an amount of money equal to the sum of the individual penalties that the court saw fit to impose upon them.  Those individual penalties were identified in the court’s reasons.  Insofar as concerned the first respondent, $21,600.00 was imposed in respect of the contravening conduct that took place on 29 and 30 April 2017; and $25,650.00 was imposed in respect of the contravening conduct that took place on 9 May 2017.  Insofar as concerned the second respondent, $3,240.00 was imposed in respect of the contravening conduct of 29 and 30 April 2017; and $4,050.00 was imposed in respect of the contravening conduct of 9 May 2017.  No other relief was granted in connection with either episode.

4. On 12 October 2021, the first and second respondents filed a notice of appeal relating to “…a part of the [L]iability [J]udgement…and part of the [P]enalty [J]udgment”.  In truth, the entirety of the appeal is brought in relation to some of the final relief that the court granted, all of which was granted (at least as against the first and second respondents) by means of the Penalty Judgment.  Nothing presently turns upon that distinction.

5. The scope of the appeal is easily enough understood:  the respondents (or the remaining respondents) contend that the court was in error insofar as it concluded that the contravening conduct of Thursday, 9 May 2017 (that is, the second of the two relevant episodes) occurred.  They seek to have the relief that was granted in consequence of that conduct—specifically, the penalties that were imposed in respect of it—set aside.  No challenge is made to the findings that were made, or the relief that was granted, in respect of the events of 29 and 30 April 2017.

6. The respondents now seek an order to stay the final relief ordered on 14 September 2021 until the final determination of the appeal..  The Commissioner does not consent to a stay of that kind.  Instead, he submits that an order to stay only so much of the final relief as pertains to the contravening conduct that was found to have occurred on 9 May 2017 (that is, the relief that is the subject of challenge on the appeal) is appropriate.

7. The court’s power to grant a stay in respect of a judgment or order is not presently in doubt: Federal Court Rules 2011, r 41.03; see also Beijing Be Green Import & Export Co Ltd v Elders International Australia Pty Ltd (2014) 323 ALR 703, 718 [58] (Foster J), regarding the court’s inherent power in that respect (observations that were not disturbed on appeal in Elders International Australia Pty Ltd v Beijing Be Green Import & Export Co Ltd (2014) 324 ALR 194). The court’s discretion is broad. It does not require the presence of special or exceptional circumstances: Coshott v Prentice [2013] FCA 1085, [36] (Perry J). It is sufficiently broad to permit orders that, in effect, stay only part of an existing verdict: Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685, 694-695 (Kirby P, Hope and McHugh JJA).

8. By their notice of appeal, the respondents seek an order that orders 1 and 2 of the orders made on 14 September 2021 be set aside and replaced by orders that each respondent pay so much of the pecuniary penalties that pertain to the unchallenged contravening conduct that was found to have occurred on 29 and 30 April 2017.  They do not dispute that that portion of pecuniary penalties will be payable irrespective of the outcome of their appeal.  In those circumstances (and in light of the Commissioner’s consent), I consider it appropriate to grant a stay of the orders only insofar as they relate to the findings that are challenged by the notice of appeal.

9. The penalties that were imposed against each respondent—there were two for each—were imposed, in each case, by means of a single order that required payment of a total sum.  That being so, I shall order that, until the appeal is determined, each respondent be relieved of the obligation to pay so much of those amounts as corresponds with what the court imposed in respect of the 9 May 2017 conduct.  The remainder of the total—that is to say, the penalties that were imposed in respect of the conduct that took place on 29 and 30 April 2017—shall remain payable (if not already paid).

10. In the case of the first respondent, the net result is to stay the requirement that it pay $25,650.00 of the total of $47,250.00 that it was ordered to pay.  In the case of the second respondent, the net result is to stay the requirement that he pay $4,050.00 of the total of $7,290.00 that he was ordered to pay.  That position shall endure until the determination of the appeal or further order.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

Associate:

Dated:       18 October 2021