Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) [2021] FCA 1414

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) [2021] FCA 1414 File number(s): VID 625 of 2020

Judgment of: KERR J

Date of judgment: 16 November 2021

Catchwords: INDUSTRIAL LAW – quantum of civil penalties to be imposed – union officials acting in an improper manner by their respective speech acts in the course of their lawfully attending a worksite to ascertain whether appropriate safety measures were in place for a scheduled lift of five, 16 tonne beams – also penalties to be imposed on union for its derivative offending INDUSTRIAL LAW – principles for determining appropriate penalty for a breach of a civil penalty provision – Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 384 ALR 75l followed – line of authority establishing the general proposition that pursuit of a legitimate industrial purpose by an offending union official will not be mitigating as applied in Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 distinguished as not engaged in circumstances in which not only was the presence of the officials lawful but also in which the lawful exercise of their legitimate industrial rights had been resisted and not acknowledged by those to whom they had directed the utterances they admit to be contraventions of s 500 of the FW Act INDUSTRIAL LAW – Court not to impose a conviction for a civil penalty offence unless satisfied the established conduct is in law capable of constituting the offence alleged INDUSTRIAL LAW – discretion to require personal payment – inappropriate in circumstances applying to order that Second Respondent be prevented from seeking to be indemnified by his employer INDUSTRIAL LAW – penalties to be imposed on union for its derivative offending – relevance of union at least in respect of issues of safety having taken steps to change the cultural and normative drivers of its appalling record of contravening behaviours as this Court has on many occasions condemned PRACTICE AND PROCEDURE – no utility in declarations sought – observations in Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing) [2021] FCA 1384 applied