Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161

Federal Court of Australia Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161 Appeal from: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The 250 East Terrace Case) [2022] FCA 760

File number: SAD 122 of 2022

Judgment of: CHARLESWORTH, SNADEN AND RAPER JJ

Date of judgment: 9 October 2023

Catchwords: INDUSTRIAL LAW – appeal from decision of the Federal Court of Australia – unlawful picketing – pecuniary penalties – principles to be applied – whether primary judge erred in assessing wrongdoing by reference to availability of lawful alternative remedy – whether penalties manifestly excessive – whether conduct was objectively serious – whether conduct was premeditated or caused loss – appeal dismissed

Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 5, 47, 81, 94, 95 Building and Construction Industry Security of Payment Act 2009 (SA) Crimes Amendment (Penalty Unit) Act 2017 (Cth) Fair Work Act 2009 (Cth) pts 3-4, 4-1

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The 250 East Terrace Case) [2022] FCA 760 Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 Australian Building and Construction Commissioner v Pattinson (2019) 291 IR 286 Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) (2023) 409 ALR 656 Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40 Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7 Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 Hanks v The Queen [2011] VSCA 7 House v The King (1936) 55 CLR 499 Postiglione v The Queen (1997) 189 CLR 295 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 Wong v The Queen (2001) 207 CLR 584 Zerafa v The Queen [2013] VSCA 42