Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 549

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 549

Penalties can properly be imposed under both s 46 of the BCIIP Act and s 500 of the Fair Work Act for the conduct in question, as the statutory double jeopardy provisions do not apply to prevent penalties in this case due to the distinct statutory purposes and elements; the agreed penalty range is appropriate but the penalties should be set at the upper end given the seriousness, recidivism and need for deterrence.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Maritime, Mining and Energy Union; Second Respondent: Anthony Sloane; Third Respondent: Brendan Holl
Jurisdiction
Australia
Judgment Date
28 April 2020
Procedural Posture
Civil Penalty Proceedings / Judgment on Penalty and Orders Following Admissions
Outcome
Penalties imposed as per agreed range; declarations made; no order as to costs; proceedings otherwise dismissed.
Legal Topics
Penalties, Industrial Action, Civil Double Jeopardy, Totality Principle
Industrial Law Employment Law Penalties Industrial Action Civil Double Jeopardy Totality Principle

Case Brief

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Maritime, Mining and Energy Union

First Respondent

Anthony Sloane

Second Respondent

Brendan Holl

Third Respondent

Procedural Posture

Civil Penalty Proceedings / Judgment on Penalty and Orders Following Admissions

Legal Issues

  1. 1 Whether the respondents contravened s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and s 500 of the Fair Work Act 2009 (Cth)
  2. 2 Whether penalties could be imposed for contraventions of both Acts or only one due to civil double jeopardy provisions
  3. 3 What amounts of penalties are appropriate given the agreed range and the totality/course of conduct principles

Ratio Decidendi

Penalties can properly be imposed under both s 46 of the BCIIP Act and s 500 of the Fair Work Act for the conduct in question, as the statutory double jeopardy provisions do not apply to prevent penalties in this case due to the distinct statutory purposes and elements; the agreed penalty range is appropriate but the penalties should be set at the upper end given the seriousness, recidivism and need for deterrence.

Court Disposition

Penalties imposed as per agreed range; declarations made; no order as to costs; proceedings otherwise dismissed.

Orders

  • CFMMEU to pay $75,000 (contravention of s 46 BCIIP Act – Sloane organising stoppage)
  • CFMMEU to pay $75,000 (contravention of s 46 BCIIP Act – workers' stoppage)