Australian Building and Construction Commissioner v Australian Workers' Union [2021] FCA 861

Federal Court of Australia

Australian Building and Construction Commissioner v Australian Workers' Union [2021] FCA 861 File number: VID 334 of 2019

Judgment of: BROMBERG J

Date of judgment: 28 July 2021

Catchwords: INDUSTRIAL LAW – civil penalties – admitted contravention of s 475(2) of the Fair Work Act 2009 (Cth) which prohibits an employee organisation or an officer or member thereof requesting an employer pay employees for a period in which employees undertook unprotected industrial action – admitted contraventions of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) which provides that a person must not organise or engage in unlawful industrial action – principles in relation to the imposition of pecuniary penalties – seriousness of contraventions – relevance of prior contraventions of industrial law – relevance of individual factors including contrition and remorse, cooperation, a culture of compliance and capacity to pay – application of the course of conduct principle

Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss 5, 6(1)(d), 46, 49(c), 81, 94(1) Fair Work Act 2009 (Cth), ss 12, 19(1)(c), 418, 474, 475, 539, 546, 793(1)(a) Federal Court of Australia Act 1976 (Cth), s 21

Cases cited: 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, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Perth Childrens' Hospital Contraventions Case) [2017] FCA 491 Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2006] FCA 1730; (2007) ATPR 42-140 Australian Building and Construction Commissioner v Menon [2020] FCA 1418 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Australian Securities and Investments Commission v Southcorp Ltd (No 2) (2003) 130 FCR 406 BlueScope Steel Limited v Australian Workers' Union [2018] FCA 1574 BlueScope Steel Limited v The Australian Workers' Union [2019] FCA 182 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 384 ALR 75 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150; 204 IR 142 Registered Organisations Commissioner v Australian Workers' Union [2019] FCA 1852 R v McInerney (1986) 42 SASR 111 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20