Fair Work Ombudsman (formerly Australian Building and Construction Commissioner) v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) (No 2) [2023] FCA 13

Federal Court of Australia

Fair Work Ombudsman (formerly Australian Building and Construction Commissioner) v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) (No 2) [2023] FCA 13 File number: ACD 29 of 2019

Judgment of: KATZMANN J

Date of judgment: 17 January 2023

Catchwords: INDUSTRIAL LAW — contravention of s 47(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) — where three union officials and the union admittedly engaged in an unlawful picket at a building site — reassessment of pecuniary penalty to be paid by the union after penalty imposed on union set aside following Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599; 96 ALJR 426; 314 IR 301 – where the union has a lengthy history of contravening industrial laws and adduced no evidence of contrition or corrective action, to what extent the penalty should be increased — significance of lack of evidence that contravening conduct was part of "an overarching campaign or demand", as in Pattinson — where contravening conduct committed by members of ACT Branch of Construction and General Division of union, whether the fact that the Branch has not been found to have engaged in any further contravening conduct and one of the union officials is no longer an office-holder reduces the need for specific deterrence

Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 47(1), 81(2), 81(6) Crimes Legislation Amendment (Penalty Unit) Act 2017 (Cth) Sch 1 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) s 2(1), Sch 1 Pt 3 (Div 5) cll 318, 323