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

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

Penalties for breach of s 500 FW Act by permit holders 'acting in an improper manner' must be determined with reference to the context, including legitimate industrial purpose and whether lawful industrial rights were resisted, rather than simply on persistence; mitigation applies to extent of remorse and steps taken to avoid future offending; union's derivative liability penalized in proportion but steps to address past behaviours mitigate penalty.

Jurisdiction
Australia
Judgment Date
16 November 2021
Procedural Posture
Civil Penalty Proceeding / Judgment and Orders on Penalty
Outcome
Second Respondent and Third Respondent convicted of several civil penalty offences; Union convicted for derivative liability; pecuniary penalties imposed as specified; third contravention by Second Respondent dismissed; penalty for Third Respondent wholly suspended on condition.
Legal Topics
['civil Penalties' 'breach of Civil Penalty Provisions' 'right of Entry' 'occupational Health and Safety' 'union Liability']
['industrial Law' 'employment Law'] ['civil Penalties' 'breach of Civil Penalty Provisions' 'right of Entry' 'occupational Health and Safety' 'union Liability']

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Procedural Posture

Civil Penalty Proceeding / Judgment and Orders on Penalty

Legal Issues

  1. 1 ["Quantum of civil penalties for 'acting in an improper manner' by union officials while exercising industrial rights" 'Appropriate penalty for derivative offending by union' 'Whether pursuit of a legitimate industrial purpose reduces penalty for breach of s 500 FW Act' 'Applicability of mitigation based on context' 'Discretion to require personal payment versus indemnification']

Ratio Decidendi

Penalties for breach of s 500 FW Act by permit holders 'acting in an improper manner' must be determined with reference to the context, including legitimate industrial purpose and whether lawful industrial rights were resisted, rather than simply on persistence; mitigation applies to extent of remorse and steps taken to avoid future offending; union's derivative liability penalized in proportion but steps to address past behaviours mitigate penalty.

Court Disposition

Second Respondent and Third Respondent convicted of several civil penalty offences; Union convicted for derivative liability; pecuniary penalties imposed as specified; third contravention by Second Respondent dismissed; penalty for Third Respondent wholly suspended on condition.

Orders

  • ['Second Respondent convicted of civil penalty offences contrary to s 500 FW Act and to pay penalties: nil (first contravention), $3,150.00 (second), $2,520.00 (fourth), $3,150.00 (fifth).' "Second Respondent's third contravention dismissed." 'Third Respondent convicted of civil penalty offence contrary to s 500 FW...