FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCA 802 Citation: Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCA 802 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, JOHN SETKA, SHAUN REARDON, DEREK CHRISTOPHER, ELIAS SPERNOVASILIS, BILL OLIVER, RALPH EDWARDS, GARETH STEPHENSON and CRAIG JOHNSTON v DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE File number: VID 432 of 2014 Judge: GORDON J Date of judgment: 31 July 2014 Date of hearing: 30 July 2014 Date of last submissions: 30 July 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: No Catchwords Number of paragraphs: 11 Counsel for the Applicants: Mr P Morrissey SC and Mr J Fetter Solicitor for the Applicants: Slater & Gordon Lawyers Counsel for the Respondent: Mr R Dalton Solicitor for the Respondent: Ashurst Australia IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 432 of 2014 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant JOHN SETKA Second Applicant SHAUN REARDON Third Applicant DEREK CHRISTOPHER Fourth Applicant ELIAS SPERNOVASILIS Fifth Applicant BILL OLIVER Sixth Applicant RALPH EDWARDS Seventh Applicant GARETH STEPHENSON Eighth Applicant CRAIG JOHNSTON Ninth Applicant AND: DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE Respondent JUDGE: GORDON J DATE OF ORDER: 31 JULY 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for leave to appeal and any appeal be listed for hearing in the Full Court and appellate sittings of the Court in Melbourne, at 10:15am on 8 August 2014 before a Full Court on an estimate of one day. 2. The hearing days on 6, 7 and 8 August of the trial currently scheduled to commence on 6 August 2014 are vacated. 3. By no later than 4:00pm on 1 August 2014, the Applicants file and serve their outline of submissions in accordance with practice note APP2. 4. By no later than 4:00pm on 1 August 2014, the parties confer and agree on the documents that will comprise the Appeal Book and file the index of the Appeal Book. 5. By no later than 4:00pm on 5 August 2014, the Respondent file and serve its outline of submissions in accordance with practice note APP2. 6. By no later than 4:00pm on 5 August 2014, the Applicants file and serve four copies of the Appeal Book. 7. By no later than 4:00pm on 6 August 2014, the Applicants file and serve any submissions in reply. 8. Outlines of submissions not exceed 10 pages in length, including any annexures. 9. Each party file and serve a list of authorities and legislation in accordance with practice note CM2. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth). IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 432 of 2014 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant JOHN SETKA Second Applicant SHAUN REARDON Third Applicant DEREK CHRISTOPHER Fourth Applicant ELIAS SPERNOVASILIS Fifth Applicant BILL OLIVER Sixth Applicant RALPH EDWARDS Seventh Applicant GARETH STEPHENSON Eighth Applicant CRAIG JOHNSTON Ninth Applicant AND: DIRECTOR OF FAIR WORK BUILDING INDUSTRY INSPECTORATE Respondent JUDGE: GORDON J DATE: 31 JULY 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 There is extant in the Supreme Court of Victoria an order convicting the First Applicant (the CFMEU) of crime. The five convictions were recorded in the course of disposing of a large number of related allegations of wrongful conduct by the CFMEU. 2 The substantive proceeding in this Court is an application for the imposition of penalties and related orders against the CFMEU and eight other individual respondents under ss 545 and 546 of the Fair Work Act 2009 (Cth) (FWA). 3 There is at least an overlap between the conduct put in issue in the Supreme Court of Victoria and the conduct which is in issue in these proceedings. The relief sought in these proceedings includes, but is not limited to, imposition of pecuniary penalties in respect of conduct which was the subject of proceedings in the Supreme Court of Victoria including, but not limited to, acts and omissions which the Supreme Court of Victoria found to permit or require entry of conviction for crime against the CFMEU. 4 Section 553 of the FWA entitled "criminal proceedings during civil proceedings" provides: (1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if: (a) criminal proceedings are commenced or have already commenced against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made. (2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed. 5 An available construction of s 553 of the FWA may be that, at least in respect of conduct founding the convictions presently recorded in the Supreme Court of Victoria, the proceeding in this Court for the imposition of pecuniary penalties in respect of that conduct stands dismissed (or stayed) by the operation of the statute. 6 Whether the convictions recorded by the Supreme Court of Victoria should stand is a matter that has been challenged in the Court of Appeal. Argument has been heard but the appeal not determined. Whether (or to what extent) the orders made by the Supreme Court of Victoria took into account other allegedly wrongful conduct of the CFMEU (being conduct not the subject of charge or conviction in the Supreme Court of Victoria but the subject of this proceeding) also engages s 553 of the FWA either at all or with a particular result is also a matter of controversy. 7 It is not disputed that the primary judge was right to record that there is no "direct authority" on the proper construction of s 553 or, in particular, any direct authority about how the section may apply in circumstances of the kind now under consideration. Counsel for the Director of Fair Work Building Industry Inspectorate (the Director) accepted, properly, that the first limb of the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 was satisfied. However, the Director submitted that the CFMEU failed in relation to the second limb – the question of substantial injustice. 8 The questions which arise in this matter are of a kind which in my opinion should be considered by a Full Court. I recognise that, as the primary judge recorded, this matter has had a long procedural history. I further recognise that the reference of the matter to a Full Court will result in the hearing of the trial being delayed. During the course of argument, it became apparent that although the matter has been listed for three weeks commencing on 6 August 2014, the current view of the Director's counsel is that the length of the trial is more likely to be 10 to 12 days. It will be necessary to return to this aspect. 9 Having regard to the nature of the questions that arise and the circumstances in which they do, this is in my opinion a case in which the application for leave should be referred to a Full Court. Those circumstances include, and are not limited to, the fact that on one reading of s 553 of the FWA part, if not all, of the proceeding which is to be tried already stands dismissed. It is also important to recognise that the Court of Appeal of the Supreme Court of Victoria has reserved its decision on whether (on one view of the matters) a condition for the engagement of s 553 has been met. 10 For those reasons, the application for leave to appeal from the orders of 24 July 2014 be referred to a Full Court of the Federal Court of Australia at 10.15 am on 8 August 2014. 11 Having regard to the anticipated shorter trial and the possibility that the Full Court may be able to address the application for leave to appeal (and any appeal) relatively quickly, it is inappropriate to adjourn the hearing of the trial. If the Full Court was able to resolve the application in the manner outlined, the trial may be able to commence during the week of 11-15 August and be completed in the time allocated. The parties should proceed on the basis that the trial is likely to proceed on 11 August 2014 or shortly thereafter. The hearing of the trial on 6, 7 and 8 August 2014 is vacated. That achieves the appropriate balance between ensuring that if there is to be a trial, that trial proceeds as soon as possible and minimising the injustices identified by the parties. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 31 July 2014