Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case)

In the Federal Court of Australia, the Australian Building and Construction Commissioner sought declarations of contraventions of sections 47(1) and 77(3) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and the imposition of pecuniary penalties against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and certain of its officials. The Commissioner alleged that the respondents engaged in unlawful picketing activities at two sites, resulting in contraventions of the Act. The respondents admitted the pleaded case, and the court was tasked with determining the appropriate penalties.

The court considered whether the contraventions of Mr Pearson and Mr Raspudic, which were attributed to the CFMMEU, arose from the same course of conduct. The court found that the actions of these officials were part of the same course of conduct, as they were present at the same part of the NewCold site, engaged in similar actions, were motivated by the same industrial objective, and directed their actions at the same entities. The court also considered the submissions of the respondents regarding the objective seriousness of the contraventions. The court found that the contraventions were of a lower order of seriousness, as no persons were directly prevented from entering the sites, and there was no allegation that the actions would reasonably have been expected to intimidate anyone.

The court imposed pecuniary penalties on Mr Perkovic, Mr Pearson, Mr Raspudic, and the CFMMEU for the contraventions. The penalties ranged from $15,000 to $100,000, depending on the severity of the contraventions. The court ordered that each penalty be paid to the Commonwealth of Australia within 28 days and that the respondents pay the applicant’s costs of the proceeding. The proceeding was dismissed in all other respects.

The court's decision highlights the importance of adhering to the provisions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and the consequences of engaging in unlawful picketing activities. The penalties imposed demonstrate the court's commitment to enforcing the provisions of the Act and ensuring that those who engage in unlawful conduct are held accountable for their actions.