Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 File number: VID 167 of 2016

Judge: BROMBERG J

Date of judgment: 12 November 2019

Catchwords: INDUSTRIAL LAW – admitted contraventions of s 348 of the Fair Work Act 2009 (Cth) ("Act") which provides that a person must not organise or take or threaten to take any action to coerce another person to engage in industrial activity – admitted contraventions of s 346 of the Act which provides that a person must not take adverse action against another person because the person does not or is not or proposes not to engage in industrial activity – making of declarations – principles relating to imposition of pecuniary penalties – relevance of previous contraventions by the respondents of industrial legislation to penalty to be imposed – proportionality of penalty to contravening conduct – general deterrence – specific deterrence – whether only one contravention should be found against the third respondent as a sum of the conduct of the second and third respondents – whether pecuniary penalties should be imposed on the second and third respondents personally.

Legislation: Fair Work Act 2009 (Cth) ss 346, 348, 546(1), 556

Cases cited: Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Cardigan Street Case) [2018] FCA 957 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Aldi/Altona North Case) (No 2) [2019] FCA 1667 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 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 (No 3) [2017] FCA 10 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) [2018] FCA 163 Australian Building and Construction Commissioner v Hassett [2019] FCA 855 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393 Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 Canturi v Sita Coaches Pty Ltd (ACN 004 444 900) (2002) 116 FCR 276 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra's Edge Case) [2016] FCA 772 Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 R v Arundell [2003] VSCA 69 Veen v The Queen (No 2) (1988) 164 CLR 465