Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082 File number: NSD 467 of 2016

Judge: FLICK J

Date of judgment: 13 September 2017

Catchwords: INDUSTRIAL LAW – penalties – principles to be applied – deterrence – whether maximum penalty should be imposed – maximum penalty imposed against the CFMEU INDUSTRIAL LAW – order for advertising – publication of findings made and of the orders imposing penalties – whether the Court has the power to make publication order – whether publication order should be made – purpose of publication order PRACTICE AND PROCEDURE – order for referral to the Director of Public Prosecutions – whether Court has a duty to refer conduct to Director of Public Prosecutions – referral made

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) Competition and Consumer Act 2010 (Cth) sch 2 s 246(2)(d) Crimes Act 1914 (Cth) s 35 Fair Work Act 2009 (Cth) ss 50, 348, 355, 417, 418, 545, 557 Federal Court of Australia Act 1976 (Cth) s 23 Workplace Relations Act 1996 (Cth) Federal Court Rules 2011 (Cth) r 39.04

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977, (2010) 199 IR 373 Australian Building and Construction Commission v Parker [2017] FCA 564 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 1387, (1999) 95 FCR 114 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, (2008) 165 FCR 560 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184, (2016) 341 ALR 383 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39, (2010) 269 ALR 1 Darlaston v Parker [2010] FCA 771, (2010) 189 FCR 1 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 4) [2017] FCA 580 Gouriet v Union of Post Office Workers [1977] 1 QB 729 Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425, (2007) 161 IR 338 Kelly v Fitzpatrick [2007] FCA 1080, (2007) 166 IR 14 Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 Postiglione v The Queen (1997) 189 CLR 295 Simpson v Hodges [2007] NSWSC 1230 Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 Veen v The Queen (No 2) (1988) 164 CLR 465