Stuart v Construction, Forestry, Mining and Energy Union

Case [2010] FCAFC 65


FEDERAL COURT OF AUSTRALIA

Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65

Citation: Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65
Appeal from: Stuart v Construction, Forestry, Mining and Energy Union [2009] FCA 1119
Parties: KAREN STUART v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and CHARLIE CORBETT
File number: VID 757 of 2009
Judges: MOORE, BESANKO & GORDON JJ
Date of judgment: 8 June 2010
Catchwords:

INDUSTRIAL LAW – sentencing appeal – union organiser took action to procure a stoppage of work on a building site – whether trial judge took into account incorrect or irrelevant considerations – re-exercise of sentencing discretion – declarations of contravention sought by parties by consent lacking certainty and precision – principles governing Crown appeals against sentence

PECUNIARY PENALTIES – sentencing appeal – whether manifestly inadequate – determination of appropriate penalties

Legislation: Building and Construction Industry Improvement Act 2005 (Cth)
Trade Practices Act 1974 (Cth)
Workplace Relations Act 1996 (Cth)
Cases cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Alfred v Wakelin (No. 1) [2008] FCA 1455
Australian Competition and Consumer Commission v ABB Transmission and Distribution (No 2) (2002) 190 ALR 169
Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834
Australian Competition and Consumer Commission v Danoz Direct Pty Ltd (2003) 60 IPR 296
Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No. 2) [2007] FCA 11
Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd [2001] FCA 1716
Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329
Australian Competition and Consumer Commission v Skins Compression Garments Pty Ltd [2009] FCA 710
Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
AWB Ltd v Cole (No 6) (2006) 235 ALR 307
Bass v Permanent Trustee Company Limited (1999) 198 CLR 334
Bonan v Hadgkiss (2006) 160 FCR 10
Cahill v Construction, Forestry, Mining and Energy Union (No. 4) (2009) 189 IR 304
Carlisle  Homes v Barrett Property Group Pty Ltd [2009] FCAFC 31
Carroll v The Queen (2009) 254 ALR 379
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466
Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417
Cruse v Construction, Forestry, Mining and Energy Union (No. 2) [2008] FCA 1637
Cruse v Multiplex Ltd (2008) 172 FCR 279
Dinsdale v The Queen (2000) 202 CLR 321
Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2006) 153 IR 363
Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145
Einfeld v Regina [2010] NSWCCA 87
Everett v The Queen (1994) 181 CLR 295
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Griffiths v The Queen (1977) 137 CLR 293
Hadgkiss v Aldin (2007) 164 FCR 394
Hamberger v…

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Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65
Case
[2010] FCAFC 65
Decision Date

CaseChat Overview and Summary

Stuart v Construction, Forestry, Mining and Energy Union involved a sentencing appeal brought by Stuart against the Construction, Forestry, Mining and Energy Union (CFMEU) in the Federal Court of Australia. The case arose from actions taken by a union organiser who orchestrated a work stoppage at a building site. Stuart argued that the trial judge had considered incorrect or irrelevant factors when sentencing the union organiser, and that the penalties imposed were manifestly inadequate. The appeal raised issues about the re-exercise of sentencing discretion, the certainty and precision of declarations of contravention sought by the parties, and the principles governing Crown appeals against sentence.

The court examined whether the trial judge had indeed taken into account incorrect or irrelevant considerations, and whether the penalties imposed were appropriate. The court found that the trial judge had indeed erred in the sentencing process, and that the penalties were inadequate. Consequently, the court allowed the appeal, set aside the original orders, and made new declarations and orders. These included declarations that both the union organiser and the CFMEU had contravened sections 38 and 44 of the Building and Construction Industry Improvement Act 2005 (Cth), and ordered the CFMEU to pay the appellant’s costs of the appeal.

The court's decision emphasised the need for precision and accuracy in declarations of contravention and underscored the importance of ensuring that sentences are proportionate and appropriately reflect the nature and seriousness of the offence. The court’s ruling provided clear guidance on the standards that should be applied in similar future cases, particularly concerning the role of union organisers in industrial actions and the penalties that should be imposed for breaches of industrial laws.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 1 and 2 of the Order of Gray J of 2 October 2009 be set aside.

3. In lieu of Orders 1 and 2 of the Order of Gray J of 2 October 2009, the Court makes the following declarations and orders:

(1) Declaration that the First Respondent contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) constituted by the Second Respondent organising a stop-work meeting of employees working on the site of the construction of a Police and Law Courts complex at 141 Princes Highway, Morwell in Victoria (the Site) on 3 October 2006;

(2) Declaration that the First Respondent contravened s 44 of the BCII Act constituted by the Second Respondent:

(i) refusing to induct to the Site on 19 September 2006 two employees of Celltech Australia Pty Ltd, contrary to the Second Respondent’s obligations to his employer, Hooker Cockram Projects Ltd;

(ii) stating that the work that the two employees of Celltech Australia Pty Ltd proposed to do at that Site was CFMEU work, not AMWU work, and that those employees needed a building agreement, namely a CFMEU EBA or other form of building agreement (an EBA) and all appropriate paperwork to work at that Site; and

(iii) organising a stop-work meeting of employees at that Site on 3 October 2006,

with admitted intent to apply undue pressure to Celltech Australia Pty Ltd to agree to make an EBA under Pt 8 of the Workplace Relations Act 1996 (Cth) (the WR Act).

(3) Declaration that the Second Respondent contravened s 38 of the BCII Act constituted by organising a stop-work meeting of employees working on Site on 3 October 2006.

(4) Declaration that the Second Respondent contravened s 44 of the BCII Act constituted by:

(i) refusing to induct to the Site on 19 September 2006 two employees of Celltech Australia Pty Ltd, contrary to the Second Respondent’s obligations to his employer, Hooker Cockram Projects Ltd;

(ii) stating that the work that the two employees of Celltech Australia Pty Ltd proposed to do at that Site was CFMEU work, not AMWU work, and that those employees needed an EBA and all appropriate paperwork to work at that Site; and

(iii) organising a stop-work meeting of employees at that Site on 3 October 2006,

with admitted intent to apply undue pressure to Celltech Australia Pty Ltd to agree to make an EBA under Pt 8 of the WR Act.

(5) Within 30 days of the date of publication of these Orders, the First Respondent shall pay to the District Registrar of the Victorian Registry of the Court a fine in the sum of $25,000 or by such further time and by such instalments as the District Registrar may allow.

(6) In the event that there is default in the payment of the fine referred to in paragraph (5) above, the District Registrar of the Victorian Registry of the Court shall apply to the Court for directions concerning enforcement.

(7) The First Respondent pay the Appellant’s costs of the Appeal.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For those reasons, we would make declarations against Corbett as follows:1.Declaration that the second respondent contravened s 38 of the BCII Act constituted by organising a stop-work meeting of employees working on the Site on 3 October 2006.2.Declaration that the second respondent contravened s 44 of the BCII Act constituted by:(i)refusing to induct to the Site on 19 September 2006 two employees of Celltech Australia Pty Ltd, contrary to the second respondent’s obligations to his employer, Hooker Cockram Projects Ltd;(ii)stating that the work that the two employees of Celltech Australia Pty Ltd proposed to do at that Site was CFMEU work, not AMWU work, and that those employees needed an EBA and all appropriate paperwork to work at that Site; and(iii)organising a stop-work meeting of employees at that Site on 3 October 2006with admitted intent to apply undue pressure to Celltech Australia Pty Ltd to agree to make an EBA under Pt 8 of the Workplace Relations Act 1996 (Cth).DECLARATIONS OF CONTRAVENTION AGAINST THE CFMEU In the present case, we would also make a declaration of contravention of s 38 and a declaration of contravention of s 44 of the BCII Act against the CFMEU. This is a case where there is utility in using the declaration to define the conduct that constituted a contravention of the BCII Act. In relation to both declarations of contravention, it would in our view be odd, having regard to the fact that the penalty imposed on the CFMEU in some respects concerned contravening conduct by Corbett for which it was vicariously liable, for there to be declarations of contravention of ss 38 and 44 of the BCII Act against Corbett but not against the CFMEU.COSTS The CFMEU should pay the Appellant’s costs of the appeal. We would make no order as to costs in relation to Corbett.