Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal)

The case before the court involved an appeal from liability and penalty decisions made by a judge of the Federal Court of Australia. The dispute arose from allegations of contraventions of the Fair Work Act 2009 (Cth) by various respondents, including individuals and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The primary issues in the appeal were the identification of the contract for services and the prejudice associated with a threat to take industrial action, the application of the course of conduct principle to industrial action on consecutive days, and the application of section 556 to separate contraventions. The court was also required to consider the principles of totality and parity in relation to penalties and whether loss and cost must be quantifiable on the evidence before it can be taken into account.

The court began by addressing the grounds of appeal concerning liability. Ground 1 challenged the primary judge's finding that there was a threat to take action which would prejudice an independent contractor in relation to a contract for services. The court found that the primary judge erred in making this finding without identifying and proving prejudice in relation to the particular contract for services. Similarly, Ground 2 contested the primary judge's finding that the CFMMEU was separately liable for contraventions committed by Taylor and Kera. The court held that the primary judge erred in imposing separate penalties on the CFMMEU for these contraventions. Other grounds of appeal related to errors in identifying the conduct of specific individuals and imposing penalties based on those errors.

In relation to the penalty grounds of appeal, the court examined the primary judge's application of common law sentencing principles. Ground 5 argued that the primary judge erred in not considering the conduct on two consecutive days as a single course of conduct. The court agreed, finding that the conduct was part of a single campaign and should have been considered as such. Ground 6, which replicated the error in Ground 5, also affected the CFMMEU. The court further held that the primary judge erred in not reducing penalties for certain respondents who no longer worked for the CFMMEU, as the need for specific deterrence was reduced. In relation to Ground 10, the court found that the primary judge erred in his application of the principles of totality in respect of the penalties imposed on the CFMMEU. Finally, Ground 13 concerned the primary judge's failure to quantify loss beyond certain costs, despite having largely quantified the loss in his reasoning.

The court concluded that several grounds of appeal demonstrated errors in the primary judgments. Orders were made to set aside certain declarations and penalties, and to amend other penalties. The court dismissed the appeal otherwise, and discharged the stay order. The final orders were to set aside specific declarations and penalties, to amend certain penalties, and to discharge the stay order.