Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NEXT DC P2 Project Case) [2022] FCA 37

Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NEXT DC P2 Project Case) [2022] FCA 37 File number: WAD 197 of 2020

Judgment of: BANKS-SMITH J

Date of judgment: 31 January 2022

Catchwords: INDUSTRIAL LAW - admitted contravention of s 500 of the Fair Work Act 2009 (Cth) - imposition of an appropriate penalty on the union for the improper conduct of its official - where official on site for period without escort - where official failed to comply with request to move - where contravention is relatively minor - where official has subsequently undertaken training - relevance of prior contraventions in assessing the seriousness of the contravention

Legislation: Fair Work Act 2009 (Cth) ss 12, 500, 512, 513, 546, 793, Part 3-4 Industrial Relations Act 1979 (WA) ss 49I, 49J Occupational Health and Safety Act 1984 (WA) ss 19, 22

Cases cited: Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Toowoomba Bypass Case) [2021] FCA 1128 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Queensland Infrastructure Case) [2017] FCAFC 113; (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Webb Dock Case) [2017] FCA 62 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2017] FCA 1555 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Australian Federation of Air Pilots v HNZ Australia Pty Ltd [2015] FCA 755 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076