Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the WGC Cranes Case) [2021] FCA 622

Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the WGC Cranes Case) [2021] FCA 622 File number: NSD 1792 of 2019

Judgment of: KATZMANN J

Date of judgment: 9 June 2021

Catchwords: INDUSTRIAL LAW – contraventions of s 54(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ('BCIIP Act') and s 346 of the Fair Work Act 2009 (Cth) – where two union officials admitted to engaging in intimidatory and disruptive conduct with intent to apply undue pressure on employer to make or approve a building enterprise agreement on terms proposed by the union – where the union posted photograph of employee on social media labelling employee as a "scab" attracting abusive comments – assessment of penalties – where s 94 of the BCIIP Act provides that a body corporate is taken to have engaged in the same conduct as an officer, employee or agent of the body within the scope of his or her actual or apparent authority, whether union committed one or three contraventions of s 54(1) – where contraventions occurred on consecutive days and were part of a single industrial campaign, whether contraventions should be treated as a single course of conduct – whether ss 83 and 84 of the BCIIP Act exclude the operation of the common law course of conduct principle – whether contraventions objectively serious – where union officials have no previous contraventions – where union has a history of non-compliance with industrial laws – where conduct of union officials occurred on consecutive days, was directed to a common end, and had some common features, whether the totality principle required adjustment of aggregate penalties