Fair Work Ombudsman (formerly Australian Building and Construction Commissioner) v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) (No 2)

The case between the Fair Work Ombudsman and the Construction, Forestry, Maritime, Mining and Energy Union, known as the Constitution Place Case, was heard by the Federal Court of Australia. The matter revolved around an unlawful picket carried out by three union officials and the union itself at a building site, which resulted in a contravention of section 47(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). This appeal followed a reassessment of the pecuniary penalty imposed on the union after the initial penalty was set aside in the case of Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.

The legal issues at the heart of this case centred on the appropriate level of penalty to be imposed on the union, given its history of contravening industrial laws and the absence of evidence indicating any contrition or corrective action. The court also needed to consider whether the contravening conduct was part of a broader campaign or demand, as was a factor in the Pattinson case. Additionally, the court needed to assess whether the fact that the ACT Branch of the union had not engaged in any further contravening conduct, and that one of the union officials was no longer an office-holder, affected the need for specific deterrence.

The court's reasoning was influenced by the principles established in the Pattinson case, which held that the maximum penalty should be imposed for a contravention warranting the strongest deterrence within the prescribed cap. The court found that the contravention in this case involved a deliberate act of obstructing entry to a building site for up to three hours, resulting in a two-hour delay in the commencement of work. The picket was not spontaneous but involved some level of planning. The contravention occurred in the middle of an industrial dispute that the union had brought before the Fair Work Commission, with the obvious purpose of putting pressure on the employer to agree to the union's demands or accelerate the resolution of the dispute. The court found the contravention to be serious, involving the deliberate obstruction of entry to the building site, the refusal to remove vehicles when asked, and the use of chains and locks without authorisation from the occupiers of the site. The unlawful picket resulted in the loss of productivity from labour and plant and equipment for both the employer and the construction control company, as well as the consequential impact on the performance of later scheduled works.

The court ordered that the union pay a penalty of $180,000 in respect of its contravention of section 47(1) of the Building Construction (Improving Productivity) Act 2016 (Cth) on 14 May 2018. The penalty was to be paid to the Commonwealth of Australia within 28 days.