Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53

The appeal was allowed because the primary judge erred by treating the respondents' asserted rationale, namely pursuit of a lawful request for payment of wages, as an important mitigating factor in assessing penalties for coercion under s 348. Sections 347 and 348 make the lawfulness of the industrial activity irrelevant to the prohibition on coercion. The primary judge also wrongly relied on the absence of quantified economic loss despite agreed facts showing substantive economic loss from a blockade that stopped almost all work at a large construction site. Given the deliberate, premeditated coercion, the CFMEU's extensive history and the prior contraventions of several individual...

Jurisdiction
Australia
Judgment Date
29 March 2017
Procedural Posture
Appeal in Civil Penalty Proceedings Under the Fair Work Act 2009 (cth) / Full Court Appeal From Pecuniary Penalties Imposed by the Primary Judge for Admitted Contraventions of S 348
Outcome
Appeal allowed; the primary judge's penalty order was set aside and higher pecuniary penalties were imposed.
Legal Topics
['fair Work Act 2009 (cth) S 348 Coercion' 'industrial Activity' 'pecuniary Penalties' 'course of Conduct' 'specific and General Deterrence' 'manifest Inadequacy of Penalty']
['industrial Law' 'employment and Industrial Relations' 'civil Penalties'] ['fair Work Act 2009 (cth) S 348 Coercion' 'industrial Activity' 'pecuniary Penalties' 'course of Conduct' 'specific and General Deterrence' 'manifest Inadequacy of Penalty']

Case Brief

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Procedural Posture

Appeal in Civil Penalty Proceedings Under the Fair Work Act 2009 (cth) / Full Court Appeal From Pecuniary Penalties Imposed by the Primary Judge for Admitted Contraventions of S 348

Legal Issues

  1. 1 ["Whether the primary judge erred in treating the respondents' rationale or lawful request as a mitigating factor when assessing penalties for contraventions of s 348 of the Fair Work Act 2009 (Cth)." 'Whether contraventions by multiple CFMEU officials and organisers attributed to the CFMEU should be treated as a single course of conduct or as separate contraventions for penalty purposes.' 'Whether the absence of evidence of quantified economic loss could mitigate the seriousness of a blockade that prevented most site workers from working.' "Whether the penalties imposed by the primary judge were manifestly inadequate having regard to the respondents' prior contraventions and the need for deterrence."]

Ratio Decidendi

The appeal was allowed because the primary judge erred by treating the respondents' asserted rationale, namely pursuit of a lawful request for payment of wages, as an important mitigating factor in assessing penalties for coercion under s 348. Sections 347 and 348 make the lawfulness of the industrial activity irrelevant to the prohibition on coercion. The primary judge also wrongly relied on the absence of quantified economic loss despite agreed facts showing substantive economic loss from a blockade that stopped almost all work at a large construction site. Given the deliberate, premeditated coercion, the CFMEU's extensive history and the prior contraventions of several individual...

Court Disposition

Appeal allowed; the primary judge's penalty order was set aside and higher pecuniary penalties were imposed.

Orders

  • ['The appeal be allowed.' 'Order 1 made on 30 May 2016 by the primary judge be set aside.' 'A total penalty of $195,000 is imposed on the CFMEU, comprising four single penalties of $40,000 each and a fifth penalty of $35,000 in respect of the second contravention of the fourth respondent.' 'A penalty of $9,000 is...