Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The College Crescent Case) [2020] FCA 757

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The College Crescent Case) [2020] FCA 757 File number: VID 881 of 2017

Judge: SNADEN J

Date of judgment: 5 June 2020

Catchwords: INDUSTRIAL LAW – pecuniary penalties – agreed contraventions – adverse action – application of "no ticket, no start" philosophy – coercion of subcontractor to pay "union rates" – analysis of the nature, gravity, character and seriousness of the contraventions – whether history of contravening conduct should inform the court's assessment of how objectively serious the agreed contraventions were – application of "civil double jeopardy", "course of conduct" and "totality" principles – personal payment orders – appropriateness of declaratory relief

Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 5 and 15 Crimes Act 1914 (Cth), s 4AA Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth), item 2 of sch 1 Fair Work Act 2009 (Cth) pts 2-4, 3-1; ss 12, 336, 342, 346, 347, 348, 363, 539, 545, 546, 556 and 793 Fair Work (Registered Organisations) Act 2009 (Cth) s 12

Cases cited: A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246 Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) (No 2) [2017] FCA 367 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 (Castlemaine Police Station Case No 2) [2020] FCA 202 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 Bay Street Case) (No 2) [2019] FCA 1859 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 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262 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) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) (2018) 265 FCR 208 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 Australian Building and Construction Commissioner [2019] FCAFC 201 Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 Fair Work Ombudsman v Australian Workers' Union [2020] FCA 60 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68 Gregor v Construction, Forestry, Mining and Energy Union & Anor [2011] FMCA 562 John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors [2009] FMCA 1248 Markarian v The Queen (2005) 228 CLR 357 Parker v Australian Building and Construction Commissioner (2019) 365 ALR 402 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 Veen v the Queen (No 2) (1988) 164 CLR 465 Warramunda Village v Pryde (2001) 105 FCR 437 Wong v The Queen (2001) 207 CLR 584