Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 1662

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 1662

In determining civil penalties for unlawful industrial action under s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the penalty must be proportionate to the objective seriousness of the contravention, taking into account all relevant factors as specified in s 81(6), including but not limited to past contraventions, the nature and extent of the conduct, cooperation, and the need for deterrence. Penalties at or near the maximum are reserved for the most serious contraventions in all relevant circumstances, not solely due to recidivism. On the facts, a substantial penalty for the union, significant but lesser penalties for officials, and smaller...

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Maritime, Mining and Energy Union; Second Respondent: Michael Buchan; Third Respondent: Graham Charles Pallot; Fourth Respondent: Walter Vincenzo Molina; Fifth Respondent: Gerald Touhey; Sixth Respondent: Paul Ali; Seventh Respondent: Chad Barron; Eighth Respondent: Brian Colclough; Ninth Respondent: Matthew Cole; Tenth Respondent: Ryan Davies; Eleventh Respondent: Rodney Dickerson; Twelfth Respondent: David Doyle; Fourteenth Respondent: David Evans; Fifteenth Respondent: Julien Feehan; Sixteenth Respondent: Niall Fitzgibbon; Seventeenth Respondent: Matthew Gill; Eighteenth Respondent: Geoffrey Hale; Twentieth Respondent: Shayne Honeyfield; Twenty Second Respondent: Cheryle Jones; Twenty Third Respondent: Dau Bethou Kelang; Twenty Fourth Respondent: Ryan Kilgour; Twenty Fifth Respondent: Tristan Kohli; Twenty Sixth Respondent: Ryan Lilly; Twenty Seventh Respondent: Ramon Martinez; Twenty Eighth Respondent: Gavin McGroarty; Twenty Ninth Respondent: Matthew Mentesana; Thirtieth Respondent: Darren Moyes; Thirty First Respondent: Keith Muller; Thirty Third Respondent: Matthew Peary; Thirty Fourth Respondent: Richard Pledger; Thirty Fifth Respondent: Bradley Pollard-Sharp; Thirty Sixth Respondent: Ben Pringle; Thirty Seventh Respondent: Gary Rangitaawa; Thirty Eighth Respondent: Joel Rogers; Thirty Ninth Respondent: Warren Schmidt; Fortieth Respondent: Ian Scott; Forty First Respondent: Kevin Seymour; Forty Second Respondent: Riken Shrestha; Forty Third Respondent: Peter Tait; Forty Fourth Respondent: Branimir Uremovic; Forty Fifth Respondent: James Vikingur; Forty Sixth Respondent: Jordan Weeks; Forty Eighth Respondent: Gary Williams
Jurisdiction
Australia
Judgment Date
18 November 2020
Procedural Posture
Application (civil Penalty) / Final Judgment at First Instance
Outcome
Declarations made; pecuniary penalties imposed; no personal payment orders.
Legal Topics
Unlawful Industrial Action, Civil Penalty, Proportionality, Personal Payment Orders, Pecuniary Penalty, Trade Union Liability
Industrial Law Employment Law Unlawful Industrial Action Civil Penalty Proportionality Personal Payment Orders Pecuniary Penalty Trade Union Liability

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Maritime, Mining and Energy Union

First Respondent

Michael Buchan

Second Respondent

Graham Charles Pallot

Third Respondent

Walter Vincenzo Molina

Fourth Respondent

Gerald Touhey

Fifth Respondent

Paul Ali

Sixth Respondent

Chad Barron

Seventh Respondent

Brian Colclough

Eighth Respondent

Matthew Cole

Ninth Respondent

Ryan Davies

Tenth Respondent

Rodney Dickerson

Eleventh Respondent

David Doyle

Twelfth Respondent

David Evans

Fourteenth Respondent

Julien Feehan

Fifteenth Respondent

Niall Fitzgibbon

Sixteenth Respondent

Matthew Gill

Seventeenth Respondent

Geoffrey Hale

Eighteenth Respondent

Shayne Honeyfield

Twentieth Respondent

Cheryle Jones

Twenty Second Respondent

Dau Bethou Kelang

Twenty Third Respondent

Ryan Kilgour

Twenty Fourth Respondent

Tristan Kohli

Twenty Fifth Respondent

Ryan Lilly

Twenty Sixth Respondent

Ramon Martinez

Twenty Seventh Respondent

Gavin McGroarty

Twenty Eighth Respondent

Matthew Mentesana

Twenty Ninth Respondent

Darren Moyes

Thirtieth Respondent

Keith Muller

Thirty First Respondent

Matthew Peary

Thirty Third Respondent

Richard Pledger

Thirty Fourth Respondent

Bradley Pollard-Sharp

Thirty Fifth Respondent

Ben Pringle

Thirty Sixth Respondent

Gary Rangitaawa

Thirty Seventh Respondent

Joel Rogers

Thirty Eighth Respondent

Warren Schmidt

Thirty Ninth Respondent

Ian Scott

Fortieth Respondent

Kevin Seymour

Forty First Respondent

Riken Shrestha

Forty Second Respondent

Peter Tait

Forty Third Respondent

Branimir Uremovic

Forty Fourth Respondent

James Vikingur

Forty Fifth Respondent

Jordan Weeks

Forty Sixth Respondent

Gary Williams

Forty Eighth Respondent

Procedural Posture

Application (civil Penalty) / Final Judgment at First Instance

Legal Issues

  1. 1 What is the appropriate quantum of penalties for the union, union officials and workers for contraventions of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth)?
  2. 2 Should personal payment orders be made against union officials?
  3. 3 How should principles of proportionality and past contraventions affect penalty?

Ratio Decidendi

In determining civil penalties for unlawful industrial action under s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), the penalty must be proportionate to the objective seriousness of the contravention, taking into account all relevant factors as specified in s 81(6), including but not limited to past contraventions, the nature and extent of the conduct, cooperation, and the need for deterrence. Penalties at or near the maximum are reserved for the most serious contraventions in all relevant circumstances, not solely due to recidivism. On the facts, a substantial penalty for the union, significant but lesser penalties for officials, and smaller...

Court Disposition

Declarations made; pecuniary penalties imposed; no personal payment orders.

Orders

  • Declaration that the union, officials, and workers contravened s 46 of the Act.
  • Union to pay $125,000 penalty.