Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (The Botany Cranes Case) [2021] FCA 363

Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (The Botany Cranes Case) [2021] FCA 363 File number(s): NSD 574 of 2019

Judgment of: RARES J

Date of judgment: 22 April 2021

Catchwords: INDUSTRIAL LAW – application for declarations of contraventions of ss 47(1), 52(a) and 54(1) Building and Construction Industry (Improving Productivity) Act 2016 (Cth) by officers of building industry participant acting on its behalf and by their conduct and states of mind also by participant under s 94 – where contraveners organised and or engaged in unlawful picket that prevented and intimidated persons accessing or leaving building site to coerce employer to reemploy employee and advance industrial objective of signing proposed enterprise agreement in contravention of s 47(1) – where officers of association acting on its behalf organised and engaged or threatened to organise or take action with intent to coerce employer to reemploy employee in contravention of s 52(a) – where officer of association acting on its behalf threatened to organise or take action against employer with intent to apply undue pressure to it to agree to make enterprise agreement in contravention of s 54(1)(a) STATUTORY INTERPRETATION – whether multiple contraventions by conduct of officials acting on behalf of building industry participant taken to be its conduct can result in multiple contraventions by participant of same civil penalty provision under ss 83, 84 and 91 – whether conduct common to each contravener's contraventions of one of ss 47(1) and 52(a) "same conduct" or "particular conduct" precluding more than one penalty being imposed in relation to that conduct for other contravention – meaning of "particular conduct", "same conduct" and "same facts" in ss 83, 84 and 91 INDUSTRIAL LAW – penalty – where building industry participant and officials acting on its behalf have significant history of prior contraventions – where contravening conduct intimidated employees of and caused loss of revenue to building industry participant – power to order part of penalty to be paid to persons affected by contravention under s 81(5)