Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59 Appeal from: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3) [2018] FCA 564

File number: QUD 324 of 2018

Judges: ALLSOP CJ, GRIFFITHS AND RANGIAH JJ

Date of judgment: 12 April 2019

Catchwords: INDUSTRIAL LAW – appeal from a single judge of the Federal Court – where respondents engaged employees and subcontractors in stop-work meetings – contraventions of ss 355 and 346(b) of the Fair Work Act 2009 (Cth) – whether respondents also contravened s 417 – whether stop-work meetings were "industrial action" when employers had agreed to or authorised union meetings under an enterprise agreement – whether s 19(2)(a) applies – proper construction of the union meeting clause in an enterprise agreement – whether s 19(2)(a) authorises agreements with respect to industrial action which could be taken for the unlawful purpose of contravening sections of Pt 3-1 – whether there is a requirement that a union meeting be for a "genuine" purpose – whether a union meeting for an unlawful purpose is a "sham" and unlawful under s 194(e) for inconsistency with s 417 INDUSTRIAL LAW – pecuniary penalties imposed on the union through individual union officers for contraventions of s 355 and s 346(b) by sixteen strikes or stop-work meetings over nine days – whether more than one penalty should be imposed on those days in which there were multiple contraventions on multiple sites – application of s 556 for contraventions on the same date – application of course of conduct principle – deliberate, premeditated and sustained campaign of unlawful industrial behaviour orchestrated by the union – extensive and vast history of prior contraventions – involvement of senior union officers – loss found to be likely greater on the days where multiple sites affected – single penalty for each day involving multiple contraventions across multiple sites inadequate – appeal allowed in part