Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9

The appeal was upheld only as to the erroneous finding against Mr Taylor regarding involvement in Mr Kera's contravention and as to the making and utility of the publication orders; all other grounds relating to contract identification, course of conduct, penalty quantification, totality, parity, and cost/loss did not show error in the primary judgments.

Jurisdiction
Australia
Judgment Date
14 February 2020
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal allowed in part, otherwise dismissed
Legal Topics
['adverse Action' 'penalty Quantification' 'coercion' 'industrial Action' 'entry Without Permit' 'course of Conduct' 'totality Principle' 'parity' 'publication Orders' 'loss and Cost Quantification']
['industrial Law' 'employment Law'] ['adverse Action' 'penalty Quantification' 'coercion' 'industrial Action' 'entry Without Permit' 'course of Conduct' 'totality Principle' 'parity' 'publication Orders' 'loss and Cost Quantification']

Case Brief

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Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in findings of threats and prejudice for adverse action against an independent contractor under the Fair Work Act 2009 (Cth)' 'Proper application of the course of conduct principle to consecutive days of industrial action' 'Whether s 556 precludes dual penalties for the same conduct' 'Appropriate application of the totality and parity principles' 'Whether loss must be quantifiable on the evidence to be taken into account' 'Jurisdiction for making publication orders under s 545 of the Fair Work Act 2009 (Cth)']

Ratio Decidendi

The appeal was upheld only as to the erroneous finding against Mr Taylor regarding involvement in Mr Kera's contravention and as to the making and utility of the publication orders; all other grounds relating to contract identification, course of conduct, penalty quantification, totality, parity, and cost/loss did not show error in the primary judgments.

Court Disposition

Appeal allowed in part, otherwise dismissed

Orders

  • ['Appeal grounds 3, 14 and 15 upheld.' 'Declaration 17 made on 15 March 2018 set aside.' 'Order 2 made on 13 November 2018 amended: Second Respondent, Darren Taylor, to pay a penalty of $8,000 to the Commonwealth within 28 days.' 'Orders 9 and 10 (publication orders) made on 13 November 2018 set aside.' 'Appeal...