Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Botany Cranes Case) (No 4) [2021] FCA 525

Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Botany Cranes Case) (No 4) [2021] FCA 525 File number(s): NSD 574 of 2019

Judgment of: RARES J

Date of judgment: 19 May 2021

Catchwords: INDUSTRIAL LAW – power of Court to order payment of part of pecuniary penalty imposed on contravener to third party in addition to Commonwealth pursuant to Building and Construction Industry (Improving Productivity) Act 2016 (Cth) s 81(5) – where third party is police force deployed to keep the peace or individual who suffered distress and hurt to feelings caused by contravention INDUSTRIAL LAW – whether non-indemnification or personal payment order can be imposed on individual contravener where applicant did not apply for or seek such order – whether application for penalty under s 81(1)(a) implicitly includes non-indemnification or personal payment order – whether necessary to achieve deterrence including that sting or burden of penalty fall on individual

Legislation: Acts Interpretation Act 1901 (Cth) s 23(b) Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 3, 5, 47(1), 52(a), 81(1)(a), 81(1)(b), 81(5), 81(7) Building and Construction Industry Improvement Act 2005 (Cth) s 49(5) Fair Work Act 2009 (Cth) s 546(3) Federal Court Rules 2011 r 8.03

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (The Botany Cranes Case) [2021] FCA 363 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336 The Commonwealth v Director, Fair Work Building Inspectorate (2015) 258 CLR 482 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Limited (1979) 144 CLR 45 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49 Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union (2011) 220 FCR 551