Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 Appeal from: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 616

File number: WAD 268 of 2016

Judges: NORTH, DOWSETT AND RARES JJ

Date of judgment: 29 March 2017

Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – course of conduct – where union and several officials organise industrial action in contravention of s 348 with intent to coerce person to engage in lawful action – whether contravening conduct of officials deemed by s 793 to have been engaged in by body corporate amounts to single course of conduct or several individual contraventions by body corporate – whether omission of s 348 from s 557 affects treatment of contraventions as a single course of conduct INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – relevance of lawfulness of industrial activity – where s 348 prohibited organising or taking any action against another person with intent to coerce the person or third party to engage in industrial activity – where s 347 made lawfulness or unlawfulness of industrial activity irrelevant to prohibition against coercion in s 348 – whether primary judge erred in treating as mitigating factor lawfulness of rationale for industrial activity in assessing seriousness of contravention INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – assessment of penalty – whether primary judge erred in imposing pecuniary penalties – whether primary judge imposed manifestly inadequate pecuniary penalties – where respondents had significant histories of prior contraventions of s 348 – need for specific and general deterrence