Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40

The Union committed only one contravention of s 47(1) and one of s 52(a) on 25 January 2019 because the conduct attributed to it constituted a single picket, and s 83(2) precluded liability for more than one pecuniary penalty arising from the same conduct. The primary judge erred by imposing multiple penalties and by treating 'undue pressure' in s 54 as equivalent in seriousness to 'coercion,' contrary to the admissions and statutory context. The Court re-exercised the discretion, imposing only one penalty per relevant contravener and setting aside orders inconsistent with these findings.

Jurisdiction
Australia
Judgment Date
15 March 2023
Procedural Posture
Appeal / Judgment After Hearing of Appeal, Re Exercise of Discretion on Penalty
Outcome
Appeal allowed in part; certain penalties and orders of the primary judge set aside; penalties re-imposed in accordance with corrected construction and application of the Act; costs reserved.
Legal Topics
['pecuniary Penalties' 'unlawful Picket' 'coercion' 'building and Construction Industry (improving Productivity) Act 2016 (cth)' 'penalty Discretion' 'double Jeopardy—civil Penalty' 'non Indemnification Orders']
['employment and Industrial Relations' 'industrial Law'] ['pecuniary Penalties' 'unlawful Picket' 'coercion' 'building and Construction Industry (improving Productivity) Act 2016 (cth)' 'penalty Discretion' 'double Jeopardy—civil Penalty' 'non Indemnification Orders']

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Procedural Posture

Appeal / Judgment After Hearing of Appeal, Re Exercise of Discretion on Penalty

Legal Issues

  1. 1 ['Whether the CFMMEU committed multiple or single contraventions of ss 47(1) and 52(a) on 25 January 2019 by attributed conduct of officials' 'Whether s 83(2) prevented more than one pecuniary penalty for the same conduct for ss 47(1) and 52(a) contraventions' "Whether the primary judge erred in penalty assessment for s 54 contraventions by treating 'undue pressure' as equivalent in seriousness to 'intent to coerce'" 'Scope and discretion of non-indemnification orders']

Ratio Decidendi

The Union committed only one contravention of s 47(1) and one of s 52(a) on 25 January 2019 because the conduct attributed to it constituted a single picket, and s 83(2) precluded liability for more than one pecuniary penalty arising from the same conduct. The primary judge erred by imposing multiple penalties and by treating 'undue pressure' in s 54 as equivalent in seriousness to 'coercion,' contrary to the admissions and statutory context. The Court re-exercised the discretion, imposing only one penalty per relevant contravener and setting aside orders inconsistent with these findings.

Court Disposition

Appeal allowed in part; certain penalties and orders of the primary judge set aside; penalties re-imposed in accordance with corrected construction and application of the Act; costs reserved.

Orders

  • ['The appeal be allowed.' 'Specified paragraphs of original orders set aside.' 'Within 28 days, CFMMEU to pay $190,000 for s 47(1) and $150,000 for s 54 contraventions, both to the Commonwealth.' 'Within 90 days, Mr Kera to pay $35,000, Mr Michael Greenfield to pay $25,000 (s 47(1)) and $18,000 (s 54), Ms Mallia to...