Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case)

The Director of the Fair Work Building Industry Inspectorate initiated proceedings against the Construction, Forestry, Mining and Energy Union and one of its officers, Joseph Myles, in the Federal Court of Australia. The proceedings stemmed from an incident that occurred during the rail separation and station upgrade project at Mitcham train station. The dispute centred on the contravention of section 348 of the Fair Work Act 2009 (Cth), which prohibits the coercion of an employer to engage in industrial activity. The Director alleged that Myles, acting on behalf of the Union, had threatened and organised industrial action with the intent to compel John Holland Pty Ltd to employ a union delegate on the site.

The court was tasked with determining several legal issues, including whether Myles' conduct constituted a course of conduct under the Act, the seriousness of the contraventions, the relevance of previous contraventions, and whether the contraventions had become normalised. Additionally, the court needed to assess whether Myles demonstrated remorse and contrition and to decide on the appropriate penalties to be imposed on the Union and Myles. The court also needed to consider the application of the totality principle and whether Myles should be required to pay the penalty personally without reimbursement.

In reaching its decision, the court found that Myles' actions constituted a course of conduct and were serious in nature, given the disruption caused to the project. The court also determined that previous contraventions were relevant and that the contraventions had not been normalised. Myles' lack of remorse and contrition was noted, and the court applied the totality principle to arrive at the penalties. The Union and Myles were ordered to pay specified penalties, which were to be remitted to the Commonwealth of Australia within 30 days.