Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3) [2018] FCA 564

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3) [2018] FCA 564

Union meeting clauses in the enterprise agreements, when complied with, meant the relevant stoppages were not 'industrial action' for the purposes of s 417 Fair Work Act 2009 (Cth) due to s 19(2)(a). Therefore, no contravention of s 417 arose in relation to those stoppages. Appropriate penalties for admitted contraventions of ss 346(b) and 355 FW Act were determined in light of deterrence, recidivism, and other sentencing principles.

Jurisdiction
Australia
Judgment Date
24 April 2018
Procedural Posture
Civil Penalty Proceedings / Judgment, Orders and Penalty Determination
Outcome
Declarations and pecuniary penalties ordered against respondents for admitted contraventions; reserved issue on s 417 FW Act decided in favour of respondents; orders made for payment of penalties as specified.
Legal Topics
['contraventions of Fair Work Act' 'industrial Action' 'union Meetings' 'pecuniary Penalties' 'vicarious Liability']
['industrial Law' 'employment Law'] ['contraventions of Fair Work Act' 'industrial Action' 'union Meetings' 'pecuniary Penalties' 'vicarious Liability']

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Procedural Posture

Civil Penalty Proceedings / Judgment, Orders and Penalty Determination

Legal Issues

  1. 1 ['Whether stoppages organised by union officials constituted breaches of s 417 of the Fair Work Act 2009 (Cth) or were authorised union meetings under enterprise agreements' 'Whether enterprise agreement clauses could legitimise stoppages and preclude contravention findings for s 417 FW Act' 'Appropriate penalties for admitted contraventions of ss 355 and 346(b) FW Act']

Ratio Decidendi

Union meeting clauses in the enterprise agreements, when complied with, meant the relevant stoppages were not 'industrial action' for the purposes of s 417 Fair Work Act 2009 (Cth) due to s 19(2)(a). Therefore, no contravention of s 417 arose in relation to those stoppages. Appropriate penalties for admitted contraventions of ss 346(b) and 355 FW Act were determined in light of deterrence, recidivism, and other sentencing principles.

Court Disposition

Declarations and pecuniary penalties ordered against respondents for admitted contraventions; reserved issue on s 417 FW Act decided in favour of respondents; orders made for payment of penalties as specified.

Orders

  • ['Pecuniary penalty of $10,000 against Second Respondent (Parfitt)' 'Pecuniary penalty of $30,000 against Third Respondent (Steele)' 'Pecuniary penalty of $12,000 against Fourth Respondent (Pauls)' 'Pecuniary penalty of $12,000 against Fifth Respondent (Bland)' 'Pecuniary penalty of $15,000 against Sixth Respondent...