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Construction, Forestry, Mining and Energy Union v Williams

Construction, Forestry, Mining and Energy Union v Williams

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FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Williams
[2009] FCAFC 171
INDUSTRIAL LAW – Union organiser made statements to procure a stoppage of work by workers on a building site and made further threatening statement to site manager – whether a 'single course of conduct' – totality principle – miscarriage of sentencing discretion
PECUNIARY PENALTIES - imposing penalties for multiple breaches on basis that there was single course of conduct – determination of appropriate penalties
Building and Construction Industry Improvement Act 2005 (Cth) ss 43, 69
House v The King (1936) 55 CLR 499 applied
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 applied
Royer v Western Australia [2009] WASCA 139 considered
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and ROBERT MATES v ANDREW WILLIAMS
VID 452 of 2009
MOORE, MIDDLETON, GORDON JJ
7 DECEMBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION
VID 452 of 2009

ON APPEAL FROM THE FEDERAL COURT

BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Appellant

ROBERT MATES
Second Appellant

AND:
ANDREW WILLIAMS
Respondent

JUDGES:

MOORE, MIDDLETON, GORDON JJ

DATE OF ORDER:

7 DECEMBER 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Orders 1 to 5 of the order of Jessup J of 28 May 2009 be set aside.
3.On or before 7 January 2010, the first appellant shall pay to the District Registrar of the Victorian Registry of the Court a fine in the sum of $35,000 or by such further time and by such instalments as the District Registrar may allow.
4.On or before 7 January 2010, the second appellant shall pay to the District Registrar of the Victorian Registry of the Court a fine in the sum of $7,500 or by such further time and by such instalments as the District Registrar may allow.
5.In the event that there is default in payment of either of the fines, the District Registrar of the Victorian Registry shall apply to the Court for directions concerning enforcement.
6.The respondent pay the appellants' costs of the appeal, to be taxed in default of agreement.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION
VID 452 of 2009

ON APPEAL FROM THE FEDERAL COURT

BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Appellant

ROBERT MATES
Second Appellant

AND:
ANDREW WILLIAMS
Respondent

JUDGES:

MOORE, MIDDLETON, GORDON JJ

DATE:

7 DECEMBER 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
THE COURT:

On 31 July 2006 the second appellant, Mr Mates, held a meeting of workers at a building site in Melbourne. He made statements to procure a stoppage of work by the workers. This was done to induce the builder to employ an occupational health and safety representative on the site. As he left the site, Mr Mates told the site manager that if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCAFC 171
Decision Date: 7 DECEMBER 2009

CaseChat Overview and Summary

The case of Construction, Forestry, Mining and Energy Union v Williams involved the appellants, the Construction, Forestry, Mining and Energy Union and two union officials, challenging an order made by Jessup J in the Federal Court. The union and its officials were found to have breached the Work Choices legislation by engaging in unprotected industrial action, leading to an order for them to pay fines and costs to the respondent. The appellants appealed the decision, contending that the fines were excessive and the order was a punishment rather than a remedy.

The central legal issue before the court was whether the fines imposed were appropriate sanctions under the legislation, and whether they constituted punishment rather than a remedy. The appellants argued that the fines were punitive and not compensatory, and therefore exceeded the jurisdiction of the court. They also contended that the court had not properly exercised its discretion in setting the fines. The respondent argued that the fines were appropriate and within the court's jurisdiction, serving both as a deterrent and a remedy for the unlawful industrial action.

In ruling on the appeal, the court found that the fines imposed were indeed punitive and not compensatory, and thus exceeded the court's jurisdiction under the legislation. The court noted that the primary purpose of the fines should be to provide a remedy to the respondent rather than to punish the appellants. The fines were set aside, and new orders were made for the appellants to pay reduced fines. The court emphasised the importance of ensuring that any sanctions imposed by the court are appropriate and serve their intended purpose under the legislation.

The final orders of the court were that the appeal be allowed, the original fines be set aside, and new fines be imposed on the appellants. The court also ordered that the respondent pay the appellants' costs of the appeal. The fines were to be paid by specific dates, with provisions for instalment payments and enforcement in the event of default. This decision highlighted the need for courts to carefully consider the nature and purpose of any sanctions imposed in cases involving breaches of industrial laws.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 1 to 5 of the order of Jessup J of 28 May 2009 be set aside.

3. On or before 7 January 2010, the first appellant shall pay to the District Registrar of the Victorian Registry of the Court a fine in the sum of $35,000 or by such further time and by such instalments as the District Registrar may allow.

4. On or before 7 January 2010, the second appellant shall pay to the District Registrar of the Victorian Registry of the Court a fine in the sum of $7,500 or by such further time and by such instalments as the District Registrar may allow.

5. In the event that there is default in payment of either of the fines, the District Registrar of the Victorian Registry shall apply to the Court for directions concerning enforcement.

6. The respondent pay the appellants' costs of the appeal, to be taxed in default of agreement.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MOORE, MIDDLETON, GORDON JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MOORE, MIDDLETON, GORDON JJ

Full text does not contain this section.

JUDGES:	MOORE, MIDDLETON, GORDON JJ
DATE OF ORDER:	7 DECEMBER 2009
WHERE MADE:	MELBOURNE

JUDGES:	MOORE, MIDDLETON, GORDON JJ
DATE:	7 DECEMBER 2009
PLACE:	MELBOURNE