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Parker v Australian Building and Construction Commissioner

Parker v Australian Building and Construction Commissioner

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FEDERAL COURT OF AUSTRALIA
Parker v Australian Building and Construction Commissioner [2019] FCAFC 56

Appeal from:
Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340

Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082; 270 IR 165

File number: NSD 2227 of 2017

Judges: BESANKO, REEVES AND BROMWICH JJ

Date of judgment: 5 April 2019

Catchwords:
INDUSTRIAL LAW – appeal and cross-appeal from liability and penalty judgment of the Federal Court of Australia – where primary judge imposed civil penalties on individuals for breaches of ss 50, 348, 355 and 417 of the Fair Work Act 2009 (Cth) – where legal liability for contraventions of individuals attributed to both the Construction, Forestry, Mining and Energy Union (CFMEU) and CFMEU NSW – whether primary judge had sufficient evidence to establish causal link between site meeting and non-attendance of workers to establish breach of s 417 – whether primary judge impermissibly relied upon conduct of appellants on second day to find industrial action on first day – whether primary judge failed to make findings necessary to conclude there was a breach of s 417 – whether insufficient evidence to find intention to coerce in breach of s 348 and s 355 – whether no obligation for appellants to engage in dispute resolution procedure and primary judge therefore erred in finding contravention of s 50 – held: appeal on liability grounds dismissed

PRACTICE AND PROCEDURE – whether primary judge erred in striking out pleadings on accessorial liability for contravention of s 50 by reason of insufficient clarity – whether failure to address and determine claim that individual appellants had accessorial liability for CFMEU s 50 contravention arising from conduct of those individuals – whether primary judge failed to apply presumption in s 361 when dismissing s 348 claims against individuals – held: cross-appeal upheld in part – primary judge entitled to find pleaded allegation fell short of clarity required but obliged to consider pleaded allegation of accessorial liability for CFMEU contravention – declarations of contravention by individuals made without further penalty being imposed

INDUSTRIAL LAW – whether primary judge erred in rejecting contention there was a single course of conduct at common law or under s 557 – whether primary judge erred in finding penalties imposed on individuals were appropriate in their totality – where primary judge imposed civil penalties in the maximum amount against the CFMEU and 75% of the maximum amount against the CFMEU NSW – whether primary judge should have grouped contraventions of the two Unions – whether penalties imposed on the Unions appropriate in their totality – whether primary judge erred in finding s 545 was a source of power to make publication order – whether s 23 of the Federal Court of Australia Act 1976 (Cth) did provide such a power if s 545 insufficient – whether primary judge erred in exercise of discretion in making publication order as no proper basis and so long after the event –

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: [2019] FCAFC 56
Decision Date: 5 April 2019

CaseChat Overview and Summary

The case of Parker v Australian Building and Construction Commissioner involved the appeal and cross-appeal of a liability and penalty judgment from the Federal Court of Australia. The dispute revolved around civil penalties imposed on individuals for breaches of sections 50, 348, 355, and 417 of the Fair Work Act 2009. The penalties were attributed to both the Construction, Forestry, Mining and Energy Union (CFMEU) and CFMEU NSW. The primary issues the court had to address included whether the primary judge had sufficient evidence to establish a causal link between a site meeting and the non-attendance of workers, and if the penalties imposed were appropriate.

The court examined whether the primary judge erred in finding that the conduct of the appellants constituted industrial action and whether there was sufficient evidence to conclude that the appellants intended to coerce. The court also reviewed the primary judge's findings on the necessity for the appellants to engage in a dispute resolution procedure. The appeal on liability grounds was dismissed, but the cross-appeal was upheld in part regarding the clarity of pleadings on accessorial liability and the presumption in s 361. The court found that the primary judge erred in rejecting the contention of a single course of conduct and in the imposition of penalties. The penalties were deemed excessive when not considering the commonality and overlap of the conduct attributed to the Unions.

In conclusion, the court reduced the penalties on CFMEU to 75% of the maximum amount and on CFMEU NSW to 40% of the maximum amount. The publication order was set aside as it was not appropriate to make a replacement order in the circumstances. The parties were instructed to provide agreed or competing draft orders within 14 days to give effect to these reasons.

Orders

Orders of the court

1. The parties provide, by email to the chambers of Justices Besanko, Reeves and Bromwich, agreed or competing draft orders to give effect to these reasons within 14 days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Commissioner alleged against the individual respondents (and the Union respondents by way of vicarious or accessorial liability):(1)intent to coerce the site employees to engage in unprotected industrial action constituting proscribed industrial activity and/or proscribed industrial action by participating in stopping work, in contravention of s 348;(2)intent to coerce Lend Lease Building to allocate particular duties and responsibilities to Mr Genovese or to designate Mr Genovese as having particular duties or responsibilities, in contravention of s 355;(3)organising industrial action by the Stop Work Employees, in contravention of s 417, or, in the alternative, advising, encouraging or inciting the Stop Work Employees to organise or engage in industrial action at the site on 24 and 25 July 2014, and, by reason of s 362, to be taken to have contravened s 355;(4)failing to initiate and engage in the dispute resolution procedure required by cl 19 of the Joint Development Agreement, breaching cl 20 of the Joint Development Agreement and, thereby, contravening s 50 (as an employee and as a CFMEU official in the case of Mr Reeves, and as a CFMEU official in the case of the other nine individual respondents); and(5)in the case of Mr Reeves only, because he was the only respondent who was also an employee and who himself did not attend work, engaging in industrial action in contravention of s 417 and, in breaching the terms of the Joint Development Agreement, contravening s 50.THE EVIDENCE AT TRIAL The primary judge observed in the liability judgment (at [133]) that:(1)although the final form of the Commissioner’s pleadings divides the events of the first day (24 July 2014) into:(a)the Blocking Action, commencing at about 5.45 am;(b)the Stop Work Action, comprising a Stop Work Meeting held between 6.30 am and 7.00 am, during which a Stop Work Resolution was passed; and (c)the Enforcement Action, being conduct which followed the Stop Work Meeting, the evidence did not universally fall neatly into these periods;(2)individual witnesses did not necessarily allocate the same event to the same time period, but this did not preclude findings being made that satisfied the demands of s 140(2) of the Evidence Act 1995 (Cth); and(3)such differences in the accounts between witnesses would need to be given scrutiny. The above approach to fact-finding by the primary judge indicates that this is the sort of case in which the factual findings ultimately made by his Honour, either way, were likely to be in the category of, or analogous to, credit findings that are especially difficult to dislodge on an appeal or cross-appeal, even by way of rehearing, because of the difficulty in demonstrating error rather than mere difference of opinion as between trial and appellate judges on the determination of factual issues for which there is generally no one correct answer. The approach taken in the primary judge’s liability reasons was to:(1)consider the evidence of the Commissioner first;(2)make such uncontroversial findings as his Honour could make based on that evidence alone; and (3)identify other, more contentious, points that required resolution by reference to the entirety of the evidence. His Honour then turned to the evidence given by each of the 10 individual respondents, before addressing the contentious findings of fact.The case for the Commissioner

Decision

Reasons for decision

This ground is concerned with factual errors in the publication orders, certain of those errors being accepted by the Commissioner. This is not a matter that would independently warrant the orders being set aside, as opposed to varied. This ground should be dismissed.CONCLUSION The parties are to furnish agreed or competing draft orders to give effect to these reasons within 14 days. I have had the advantage of reading the reasons for judgment of Besanko and Bromwich JJ. I am in agreement with their Honours’ reasons and the conclusions they have reached. I wish only to add two observations with respect to the penalty orders they have proposed. First, none of the appellants’ grounds of appeal on liability sought to challenge the primary judge’s finding that the conduct of the individual appellants attributed to the two union appellants under s 793 of the Act did not result in them being liable for each of the contraventions concerned. Secondly, while the appellants’ grounds of appeal on penalty did raise course of conduct and totality arguments in respect of the penalties imposed as between the individual appellants and the two union appellants (grounds of appeal 9 and 17), they did not argue that any distinction should be drawn between the various contraventions for which the union appellants were held liable, based on differences in the nature of the conduct of the individual appellants which conduct was attributed to those two appellants. In the absence of these arguments being advanced, I also agree with the penalty orders proposed by their Honours.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Australian Building and Construction Commissioner v Parker [2017] FCA 564; 266 IR 340 Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082; 270 IR 165
File number:	NSD 2227 of 2017
Judges:	BESANKO, REEVES AND BROMWICH JJ
Date of judgment:	5 April 2019
Catchwords:	INDUSTRIAL LAW – appeal and cross-appeal from liability and penalty judgment of the Federal Court of Australia – where primary judge imposed civil penalties on individuals for breaches of ss 50, 348, 355 and 417 of the Fair Work Act 2009 (Cth) – where legal liability for contraventions of individuals attributed to both the Construction, Forestry, Mining and Energy Union (CFMEU) and CFMEU NSW – whether primary judge had sufficient evidence to establish causal link between site meeting and non-attendance of workers to establish breach of s 417 – whether primary judge impermissibly relied upon conduct of appellants on second day to find industrial action on first day – whether primary judge failed to make findings necessary to conclude there was a breach of s 417 – whether insufficient evidence to find intention to coerce in breach of s 348 and s 355 – whether no obligation for appellants to engage in dispute resolution procedure and primary judge therefore erred in finding contravention of s 50 – held: appeal on liability grounds dismissed PRACTICE AND PROCEDURE – whether primary judge erred in striking out pleadings on accessorial liability for contravention of s 50 by reason of insufficient clarity – whether failure to address and determine claim that individual appellants had accessorial liability for CFMEU s 50 contravention arising from conduct of those individuals – whether primary judge failed to apply presumption in s 361 when dismissing s 348 claims against individuals – held: cross-appeal upheld in part – primary judge entitled to find pleaded allegation fell short of clarity required but obliged to consider pleaded allegation of accessorial liability for CFMEU contravention – declarations of contravention by individuals made without further penalty being imposed INDUSTRIAL LAW – whether primary judge erred in rejecting contention there was a single course of conduct at common law or under s 557 – whether primary judge erred in finding penalties imposed on individuals were appropriate in their totality – where primary judge imposed civil penalties in the maximum amount against the CFMEU and 75% of the maximum amount against the CFMEU NSW – whether primary judge should have grouped contraventions of the two Unions – whether penalties imposed on the Unions appropriate in their totality – whether primary judge erred in finding s 545 was a source of power to make publication order – whether s 23 of the Federal Court of Australia Act 1976 (Cth) did provide such a power if s 545 insufficient – whether primary judge erred in exercise of discretion in making publication order as no proper basis and so long after the event –