Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161

The Full Court held that the primary judge made no appellable error in imposing the pecuniary penalties. The primary judge did not find that SOP Act rights were available on 16 October 2019, but permissibly treated the prior availability of lawful processes as relevant to the seriousness of Core-Form and Mr Sneath's conduct. The penalties imposed on Core-Form and Mr Sneath, although high, were not plainly outside the permissible range, and the characterisation of their conduct as objectively serious was open. The primary judge also permissibly distinguished between organising and engaging in the picket, inferred premeditation by the CFMMEU and Mr Sutherland, treated interruption of...

Jurisdiction
Australia
Judgment Date
09 October 2023
Procedural Posture
Industrial Law Appeal Concerning Pecuniary Penalties for Unlawful Picketing Under the Building and Construction Industry (improving Productivity) Act 2016 (cth) / Appeal From Pecuniary Penalty Orders Made in Australian Building and Construction Commissioner V Construction, Forestry, Maritime, Mining and Energy Union (the 250 East Terrace Case) [2022] FCA 760
Outcome
Appeal dismissed.
Legal Topics
['unlawful Picketing' 'pecuniary Penalties' 'manifest Excess' 'specific and General Deterrence' 'availability of Lawful Dispute Resolution Processes' 'objective Seriousness of Contravening Conduct']
['industrial Law' 'employment and Industrial Relations' 'civil Penalties'] ['unlawful Picketing' 'pecuniary Penalties' 'manifest Excess' 'specific and General Deterrence' 'availability of Lawful Dispute Resolution Processes' 'objective Seriousness of Contravening Conduct']

Case Brief

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Procedural Posture

Industrial Law Appeal Concerning Pecuniary Penalties for Unlawful Picketing Under the Building and Construction Industry (improving Productivity) Act 2016 (cth) / Appeal From Pecuniary Penalty Orders Made in Australian Building and Construction Commissioner V Construction, Forestry, Maritime, Mining and Energy Union (the 250 East Terrace Case) [2022] FCA 760

Legal Issues

  1. 1 ['Whether the primary judge erred by assessing wrongdoing by reference to the availability of processes under the Building and Construction Industry Security of Payment Act 2009 (SA).' "Whether the primary judge gave undue weight to the potential applicability of the SOP Act in assessing the objective seriousness of Core-Form Pty Ltd and Mr Sneath's conduct." 'Whether the penalties imposed on Core-Form Pty Ltd and Mr Sneath failed to strike a reasonable balance between deterrence and oppressive severity or were manifestly excessive.' 'Whether the primary judge failed to distinguish between organising an unlawful picket and engaging in an unlawful picket.' "Whether the primary judge erred in finding that the CFMMEU and Mr Sutherland's unlawful picket was pre-meditated and that interruptions to work on a construction site come at a cost even if not objectively quantifiable." 'Whether the penalties imposed on the CFMMEU and Mr Sutherland failed to strike a reasonable balance between deterrence and oppressive severity or were manifestly excessive.']

Ratio Decidendi

The Full Court held that the primary judge made no appellable error in imposing the pecuniary penalties. The primary judge did not find that SOP Act rights were available on 16 October 2019, but permissibly treated the prior availability of lawful processes as relevant to the seriousness of Core-Form and Mr Sneath's conduct. The penalties imposed on Core-Form and Mr Sneath, although high, were not plainly outside the permissible range, and the characterisation of their conduct as objectively serious was open. The primary judge also permissibly distinguished between organising and engaging in the picket, inferred premeditation by the CFMMEU and Mr Sutherland, treated interruption of...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellants pay the respondent's costs of the appeal in an amount or amounts to be agreed or assessed in accordance with the Court's costs practice note (GPN-Costs)."]