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

The Australian Building and Construction Commissioner brought an application against the Construction, Forestry, Maritime, Mining and Energy Union and its officers for contraventions of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). The Union and its officers directed members to cease operating cranes at various construction sites across Brisbane to compel the transfer of a person with experience in workplace health and safety to another site. The workers ceased operating cranes for two consecutive days. The Union had a significant history of contraventions. The Union pleaded guilty prior to incurring significant costs and Court time. The Union engaged a respected lawyer to provide training on compliance with the Act. The Union submitted that there were mitigating factors against imposing the maximum penalty.

The court had to decide whether the contraventions constituted a single course of conduct or transaction. The contraventions were by multiple contraveners over multiple days, but all directed at the same end. The court found that the contraventions constituted a single course of conduct. The court also had to decide whether it had the power to make a partial non-indemnification order and whether it should make an ancillary order preventing crowd-funding. The court found that it had the power to make a partial non-indemnification order under ss 81(1)(a) and/or 81(1)(c) of the Act. However, an order preventing crowd-funding would be difficult to enforce and would prevent financial assistance from close relatives. The court made a partial non-indemnification order to prevent indemnification from the Union only.

The court ordered that the document titled “List of Material Relied on by the Applicant” be placed on the Court file. The respondents’ objections to the affidavit of Warren Roy Read were also placed on the Court file. The parties were to bring in short minutes of order to give effect to the reasons of judgment delivered that day by 23 June 2022. The proceeding was adjourned to 9:30am on 24 June 2022. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.