Case: Williams v Construction, Forestry, Mining and Energy Union (No 2 ) [2009] FCA 548
Outcome: cited
agree with his Honour's observations: compare Williams v Construction, Forestry, Mining and Energy Union (No 2 ) [2009] FCA 548 at [16] per Jessup J and Temple v Powell [2008] FCA 714 ; (2008) 173 IR 189 at 209 [64] per Dowsett J. Further, on 13 March 2009, in Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223 , Jessup J found that, on 31 July 2006, Mr Mates and the Union had committed two breaches of s 43 of the Building and Construction Industry Improvement Act by organising a stoppage of work on a building site and threatening to organise a further stoppage unless the employer engaged a labourer. On 28 May 2009, Jessup J dealt with the matter of penalties: see Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548. (With the consent of the applicant, the respondents advised me that this last-mentioned judgment was the subject of an appeal.) Plainly enough, Williams is not to be treated as a prior contravention on the part of Mr Mates or the Union since the conduct in question post-dated the 15 February 2006 contravention in this case and had not been the subject of any judicial decision until this year. Always bearing this in mind, the findings of contravention of s 43 of the Building and Construction Industry Improvement Act are not necessarily irrelevant to the assessment of penalty and may be taken into appropriate account. In addition to these matters, the applicant relied on various other decisions as indicative of a prior history on the Union's part. In particular, the applicant argued that the Union had a substantial history of engaging in similar conduct because it had been found to have engaged in unlawful coercion on numerous previous occasions contrary to: A lengthier list of judicially determined contraventions of industrial legislation was set out in exhibit MG 2 to Mr Gregor's affidavit, and, as the respondents noted, included matters that were not properly to be treated as prior contraventions. I would not regard this evidence as inadmissible but the matters mentioned are to be accorded substantially less weight than those contraventions specifically mentioned above and, in some instances, virtually no weight at all. Various other judicial statements have been made concerning the significance of a prior contravention in a different state or territory: see A &amp; L Silvestri v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [13] and Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 at [18] - [19] per Jessup J. Nothing to which I have been referred dissuades me from the view that, whilst prior contraventions in any state and territories may be relevant to fixing the penalty to be imposed on the Union, it will be for the Court in each case to consider the question of weight, having regard to all the relevant circumstances. Until Jessup J's decision in Williams [2009] FCA 223 , Mr Mates had not been found to have contravened s 43 of the Building and Construction Industry Improvement Act or any other industrial legislation. The applicant referred to Duffy v Construction, Forestry, Mining and Energy Union (2008) 178 IR 47, in which, on 28 November 2008, Marshall J found that, in October 2005, the Union had contravened s 38 of the Building and Construction Industry Improvement Act . Although the report of the case indicates that Mr Mates was involved in the events resulting in the contravention finding against the Union, there was no finding of contravention against Mr Mates. Further, for present purposes, I accept that s 38 involves consideration of facts of a different kind to that involved in a s 43 contravention. Jessup J's judgment in Williams [2009] FCA 223 was delivered on 13 March 2009, and involved findings that, on 31 July 2006, Mr Mates and the Union had each committed two breaches of s 43 of the Building and Construction Industry Improvement Act . Whilst these breaches cannot be treated as prior contraventions, they can be taken into account in imposing penalties in this case. I note, of course, that they involve judicial findings made earlier this year in respect of conduct five months after 15 February 2006. These considerations affect the weight to be given Williams in imposing penalties here. The applicant submitted that the three contraventions in question here were distinct, although they all related to the respondents' purpose of coercing Hardcorp to meet their demands regarding the re-employment of Messrs Deans and O'Donnell and Ms Singleton at the Mount Street site and the allocation of particular responsibilities and duties. Much the same must also be said of Williams [2009] FCA 223 and Williams (No 2) [2009] FCA 548. Consideration of them is helpful, but ultimately the factors relevant to the imposition of penalties differ.