Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2017] FCA 1555

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2017] FCA 1555 File number: VID 27 of 2015

Judge: TRACEY J

Date of judgment: 21 December 2017

Catchwords: INDUSTRIAL LAW – consideration of appropriate penalties – where previous findings that the respondents are liable for contraventions of ss 499 and 500 of the Fair Work Act 2009 (Cth) – consideration of basis of liability of the union for contraventions of its officials

Legislation: Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) Sch 2 cl 19 Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 44 Crimes Act 1914 (Cth) s 4AA(1) Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work Act 2009 (Cth) ss 12, 348, 499, 500, 512, 539, 539(2) item 25 column 4, 545(1) 546(2), 550, 557, 557(2), 793, 793(2) Workplace Relations Act 1996 (Cth) ss 758(3), 767(1)

Cases cited: Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Cain Constructions Case) (No 2) [2017] FCA 368 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458; [2017] FCAFC 53 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Childrens' Hospital Contraventions Case) [2017] FCA 491 Australian Building and Construction Commissioner v Harris [2017] FCA 733 Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 Australian Building and Construction Commissioner v McCullough (No 2) [2017] FCA 295 Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159 Australian Competition and Consumer Commission v High Adventure Pty Ltd (2006) ATPR ¶42-091; [2005] FCAFC 247 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) (2011) 279 ALR 609; [2011] FCA 382 Cahill v Construction, Forestry, Mining and Energy Union (No 4) (2009) 189 IR 304; [2009] FCA 1040 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 Construction, Forestry, Mining and Energy Union Construction and General Division, Victoria-Tasmania Divisional Branch [2016] FWC 3190 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2016) 247 FCR 339; [2016] FCAFC 184 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77 Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1; [2010] FCAFC 39 Darlaston v Parker (2010) 189 FCR 1; [2010] FCA 771 Darlaston v Parker (No 2) (2010) 200 IR 353; [2010] FCA 1382 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Director of the Fair Work Building Industry Inspectorate v Bolton (No 2) (2016) 261 IR 452; [2016] FCA 817 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 1014 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 [2013] FCA 846 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 353 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 Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2016] FCA 872 Director of the Fair Work Building Industry Inspectorate v O'Connor [2016] FCA 415 Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798 Director of the Fair Work Building Inspectorate v Myles [2014] FCCA 1429 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331; [2015] FCAFC 59 Director, Fair Work Building Industry Inspectorate v Myles [2013] FCCA 2229 Director, Fair Work Building Inspectorate v Cradden [2015] FCA 614 Draffin v Construction, Forestry, Mining and Energy Union (2009) 189 IR 145; [2009] FCAFC 120 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118; [2013] FCA 1146 SingTel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 Stuart‑Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61; [2008] FCA 1426