Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40 Appeal from: ABCC v CFMMEU (No 3) (The Botany Cranes Case) [2021] FCA 363 ABCC v CFMMEU (The Botany Cranes Case) (No 4) [2021] FCA 525

File number: NSD 579 of 2021

Judgment of: BROMBERG, MOSHINSKy And BROMWICH JJ

Date of judgment: 15 March 2023

Catchwords: INDUSTRIAL LAW – pecuniary penalties – where the ABCC brought proceedings against one union respondent and several individual respondents for contravention of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – where the case was narrowed following mediation – where the union and the remaining respondents (four officials of the union) admitted contravening provisions of the Act in relation to (among other things) a picket – whether, in circumstances where the four officials engaged in a single unlawful picket, and their conduct was taken to have been engaged in also by the union, the union committed four contraventions of each relevant provision or only one contravention of each relevant provision – whether the officials and the union were liable for more than one pecuniary penalty for the contraventions of ss 47 and 52 of the Act or only one pecuniary penalty – whether the primary judge imposed penalties based on intent to coerce as distinct from intent to apply undue pressure – appeal allowed in part

Legislation: Building and Construction Industry Improvement Act 2005 (Cth), ss 38, 44, 49 Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss 5, 38, 47, 52, 54, 81, 83, 84, 91, 92, 94, 95 Conciliation and Arbitration Act 1904 (Cth), ss 44, 45 Evidence Act 1995 (Cth), s 191 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) Fair Work Act 2009 (Cth), ss 348, 355, 500, 546, 556, 557, 793