Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) (No 2) [2017] FCA 368

Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) (No 2) [2017] FCA 368

The acts of union officials in organising industrial action constituted multiple contraventions of s 417 of the Fair Work Act, and for the purposes of penalty, separate findings were warranted as the course of conduct unification via s 557 was not established. Penalties against individuals and the union reflect the...

Source-derived case information.

Parties
Applicant: Australian Building and Construction Commission; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Michael Powell; Third Respondent: Peter Booth; Fourth Respondent: Stephen Long; Fifth Respondent: Derek Christopher; Sixth Respondent: Bill Beattie; Seventh Respondent: John Perkovic; Eighth Respondent: Theo Theodorou; Ninth Respondent: Brendan Murphy; Tenth Respondent: Gerard Benstead; Eleventh Respondent: Joseph Myles
Jurisdiction
Australia
Judgment Date
11 April 2017
Procedural Posture
Civil Penalty Proceeding / Penalty Judgment Following Earlier Liability Finding
Outcome
Penalties imposed on union and various officials for contraventions of s 417; application otherwise dismissed.
Legal Topics
Contraventions of Civil Remedy Provisions, Industrial Action During the Term of Enterprise Agreements, Penalty Assessment Under Fair Work Act, Course of Conduct Findings, Vicarious/attributed Liability Under S 793
Industrial Law Employment Law Contraventions of Civil Remedy Provisions Industrial Action During the Term of Enterprise Agreements Penalty Assessment Under Fair Work Act Course of Conduct Findings Vicarious/attributed Liability Under S 793

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Summary, issues, holding and outcome

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Parties

Australian Building and Construction Commission

Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Michael Powell

Second Respondent

Peter Booth

Third Respondent

Stephen Long

Fourth Respondent

Derek Christopher

Fifth Respondent

Bill Beattie

Sixth Respondent

John Perkovic

Seventh Respondent

Theo Theodorou

Eighth Respondent

Brendan Murphy

Ninth Respondent

Gerard Benstead

Tenth Respondent

Joseph Myles

Eleventh Respondent

Procedural Posture

Civil Penalty Proceeding / Penalty Judgment Following Earlier Liability Finding

Legal Issues

  1. 1 Whether multiple acts by union officials on the same day constitute a single contravention under s 557 of Fair Work Act
  2. 2 Appropriate penalties for contraventions of s 417 Fair Work Act
  3. 3 Application of penalty maxima arising after events

Ratio Decidendi

The acts of union officials in organising industrial action constituted multiple contraventions of s 417 of the Fair Work Act, and for the purposes of penalty, separate findings were warranted as the course of conduct unification via s 557 was not established. Penalties against individuals and the union reflect the seriousness, prior contraventions, and need for deterrence. The penalty maxima current at contravention, not those legislated later, were applied.

Court Disposition

Penalties imposed on union and various officials for contraventions of s 417; application otherwise dismissed.

Orders

  • Second respondent (Powell) to pay $7,600 penalty
  • First respondent (CFMEU) to pay $42,000 in relation to Powell