Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

The Australian Building and Construction Commissioner brought proceedings against the Construction, Forestry, Mining and Energy Union (CFMEU) and the CFMEU Western Australia (CFMEUW) before the Fair Work Commission. The dispute arose from industrial action taken by employees at the City Square Project in Perth, which the Commissioner deemed to be unlawful under the Building and Construction Industry Improvement Act 2005 (BCII Act). The primary focus of the case was whether the industrial action constituted unlawful industrial action and if the CFMEU and CFMEUW were vicariously liable for the actions of their officers.

The court was required to determine whether the industrial action taken by the employees on 15 July 2009 constituted unlawful industrial action under the BCII Act. This involved examining if the action was industrially motivated, constitutionally connected, and not excluded. Additionally, the court had to assess if the CFMEU and CFMEUW were vicariously liable for the actions of their officer, Mr McDonald, under section 69(1)(b) of the BCII Act.

The court found that the industrial action taken by the employees on 15 July 2009 was indeed unlawful industrial action, as it contravened section 38 of the BCII Act. The court held that Mr McDonald's actions were not to be taken as the conduct of the CFMEUW, thereby exempting the CFMEUW from accessorial liability under section 69(1)(b) of the BCII Act. However, the court ruled that the conduct of Mr McDonald was to be treated as the conduct of the CFMEU, making the union vicariously liable for the unlawful industrial action.

The court declared that the industrial action taken on 15 July 2009 by building employees engaged on the City Square Project was unlawful and involved a contravention of section 38 of the BCII Act. It also declared that the CFMEU was vicariously liable for the actions of Mr McDonald, who was involved in the contravention under section 48(2)(a) and (c) of the BCII Act. The court further declared that the conduct of Mr McDonald was taken to be the conduct of the CFMEU under section 69(1)(b) of the BCII Act. The court directed that further submissions be made concerning the pecuniary penalties to be imposed and the costs of the proceedings.