Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case)

In the Federal Court of Australia, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMU) and its Acting State Secretary, Mr Sutherland, along with Mr Sneath and Core-Form, appealed against the pecuniary penalty orders imposed on them for unlawful picketing. The appeal sought to challenge the principles applied by the primary judge in assessing the penalties, specifically whether the primary judge erred in considering the availability of lawful alternative remedies, whether the penalties were manifestly excessive, and whether the conduct was objectively serious and premeditated. The Court found that none of the grounds of appeal were made out.

The legal issues before the Court involved the assessment of penalties under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act). The primary judge had considered various factors in determining the penalties, including the objective seriousness of the conduct, whether the conduct was premeditated or caused loss, and the availability of lawful alternative remedies. The appellants argued that the primary judge had erred in his approach, but the Court found no merit in these arguments. The Court held that the primary judge correctly applied the relevant principles in assessing the penalties.

The Court's reasoning involved a detailed examination of the conduct during the unlawful picket, the involvement of the appellants, and the principles governing the imposition of penalties under the BCIIP Act. The Court found that the primary judge had appropriately considered the objective seriousness of the conduct, which involved preventing a vehicle from accessing the construction site and directing chants and signs towards the head contractor and others. The Court also found that the primary judge had correctly rejected the appellants' submissions regarding the availability of lawful alternative remedies under the Building and Construction Industry Security of Payment Act 2009 (SA). The Court concluded that the penalties imposed were appropriate and not manifestly excessive.

The appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal.