Parker v Australian Building and Construction Commissioner [2019] FCAFC 56

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 – held: appeal on penalty grounds upheld in part – primary judge gave extensive and careful consideration of conduct of individuals but omitted to give adequate attention to totality in relation to Unions – penalties treated attributed conduct as separate events each warranting penalties in the maximum or 75% of the maximum amount – needed to be account given to commonality and overlap of attributed conduct – held: penalties on CFMEU reduced to 75% of the maximum amount – penalties on CFMEU NSW reduced to 40% of the maximum amount – s 23 sufficient source of power to make publication order though regard must be had to the specific legislation giving rise to the seeking of the order – publication order set aside; not appropriate to make a replacement publication order in the circumstances