Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The 250 East Terrace Case) [2022] FCA 760

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The 250 East Terrace Case) [2022] FCA 760

The Court imposed substantial pecuniary penalties for the unlawful picket at 250 East Terrace on 16 October 2019, finding the conduct was objectively serious, involved senior management, and justified specific and general deterrence—especially for the Union and Sutherland given their prior contraventions. The failure to pursue available legal remedies under the SOP Act instead of engaging in an unlawful picket increased the seriousness for Core-Form and Sneath. Co-operation by all respondents led to some mitigation, but lack of contrition and poor compliance culture in the Union warranted significant penalties.

Jurisdiction
Australia
Judgment Date
01 July 2022
Procedural Posture
Civil Penalty Proceeding / Judgment on Penalty After Admissions of Liability
Outcome
Declarations made and pecuniary penalties imposed for contraventions of s 47(1) of the BCIIP Act by all relevant parties; costs ordered against the Union.
Legal Topics
['pecuniary Penalties' 'unlawful Picket' 'building and Construction Industry (improving Productivity) Act 2016 (cth)' 'deterrence' 'repeated Contraventions' 'security of Payment Legislation']
['industrial Law' 'employment Law'] ['pecuniary Penalties' 'unlawful Picket' 'building and Construction Industry (improving Productivity) Act 2016 (cth)' 'deterrence' 'repeated Contraventions' 'security of Payment Legislation']

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Procedural Posture

Civil Penalty Proceeding / Judgment on Penalty After Admissions of Liability

Legal Issues

  1. 1 ['Determination of appropriate pecuniary penalties for contraventions of s 47(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth)' 'Impact of prior contraventions on penalty' 'Objective seriousness of unlawful picket in context of payment dispute' 'Whether the existence of alternate remedies (SOP Act) bears on penalty']

Ratio Decidendi

The Court imposed substantial pecuniary penalties for the unlawful picket at 250 East Terrace on 16 October 2019, finding the conduct was objectively serious, involved senior management, and justified specific and general deterrence—especially for the Union and Sutherland given their prior contraventions. The failure to pursue available legal remedies under the SOP Act instead of engaging in an unlawful picket increased the seriousness for Core-Form and Sneath. Co-operation by all respondents led to some mitigation, but lack of contrition and poor compliance culture in the Union warranted significant penalties.

Court Disposition

Declarations made and pecuniary penalties imposed for contraventions of s 47(1) of the BCIIP Act by all relevant parties; costs ordered against the Union.

Orders

  • ['Construction, Forestry, Maritime, Mining and Energy Union to pay $189,000 penalty within 28 days' 'Andrew Sutherland to pay $38,000 penalty within 28 days' 'Andrew James Sneath to pay $25,000 penalty within 90 days' 'Core-Form Pty Ltd to pay $132,000 penalty within 90 days' "Union to pay the applicant's costs...