Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (The Botany Cranes Case) [2021] FCA 363

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (The Botany Cranes Case) [2021] FCA 363

Distinct conduct by union officials engaged in or organizing unlawful picketing and coercion is separately attributable to the union, resulting in multiple contraventions and liability to cumulative civil penalties under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). The penalties imposed must reflect specific and general deterrence, taking account of recidivist conduct and the overall course of events.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Maritime, Mining and Energy Union; Second Respondent: Robert Kera; Third Respondent: Michael Greenfield; Fifth Respondent: Rita Mallia; Seventh Respondent: Howard Byrnes
Jurisdiction
Australia
Judgment Date
22 April 2021
Procedural Posture
Civil Penalty Application / Post Hearing, Reasons and Orders
Outcome
Contraventions by the union and its officials established. Penalties imposed.
Legal Topics
Unlawful Picketing, Coercion, Undue Pressure, Enterprise Agreements, Statutory Interpretation, Civil Penalties
Industrial Law Employment and Industrial Relations Unlawful Picketing Coercion Undue Pressure Enterprise Agreements Statutory Interpretation Civil Penalties

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Maritime, Mining and Energy Union

First Respondent

Robert Kera

Second Respondent

Michael Greenfield

Third Respondent

Rita Mallia

Fifth Respondent

Howard Byrnes

Seventh Respondent

Procedural Posture

Civil Penalty Application / Post Hearing, Reasons and Orders

Legal Issues

  1. 1 Whether individual conduct of union officials results in multiple contraventions by the union under ss 47(1) and 52(a) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth)
  2. 2 Statutory construction of ss 83, 84 and 91 – whether conduct deemed to be that of the union can result in cumulative penalties
  3. 3 Appropriate penalty for contraventions including recidivist behaviour

Ratio Decidendi

Distinct conduct by union officials engaged in or organizing unlawful picketing and coercion is separately attributable to the union, resulting in multiple contraventions and liability to cumulative civil penalties under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). The penalties imposed must reflect specific and general deterrence, taking account of recidivist conduct and the overall course of events.

Court Disposition

Contraventions by the union and its officials established. Penalties imposed.

Orders

  • Applicant to file submissions supporting orders for pecuniary penalties (some payable to Botany Cranes, possibly to Ms Hodges and NSW Police, and addressing non-indemnification).
  • Respondents to file submissions regarding potential orders.