Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2)

The case of Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) involved the Director bringing action against the CFMEU and an individual union delegate for contravening industrial laws. The Director alleged that the CFMEU had taken or threatened action with intent to coerce a person to engage in industrial activity, by requesting the placement of a union delegate on a construction site, which was refused, leading to a blockade of the work site and threats to repeat the blockade. The court was required to decide various legal issues, including the principles relevant to the penalty, proportionality of the penalty to the contravening conduct, and the purpose of penalties.

The court found that the penalties should be proportionate to the contravening conduct, taking into account the individual circumstances of the contravener, the purpose of penalties, and the seriousness of the conduct. The court also considered the principle of totality, the power to order that the penalty be paid by the individual without reimbursement, and the power to restrain the union from indemnifying the union official against the penalty. The court held that the union delegate was liable for the penalties imposed on him, and the union could not indemnify him against the penalties. The court further held that the union delegate's disregard of the law, his record of similar contraventions, and the difficulty of supervision were relevant to the proportionality of the penalty.

The court made a declaration in respect of each of the contraventions found against the respondents, and ordered the first respondent to pay a penalty of $45,000 in respect of its contraventions of section 348 of the Act as declared in paragraphs 1 and 2 above, and a penalty of $15,000 in respect of its contravention of section 348 of the Act as declared in paragraph 3 above. The court also ordered the second respondent to pay a penalty of $8,000 in respect of his contraventions of section 348 of the Act as declared in paragraphs 4 and 5 above, and a penalty of $10,000 in respect of his contravention of section 348 of the Act as declared in paragraph 6 above. The court further ordered that the first respondent must not directly or indirectly indemnify the second respondent against the penalties in paragraphs 9 and 10 above in whole or in part. The further amended originating application dated 5 October 2015 was otherwise dismissed, and there was no order as to costs.