Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 (18 May 2010)

The Construction Forestry Mining and Energy Union (CFMEU) and one of its officials, Mr Bob Mates have failed in their attempt to overturn the level of penalties imposed upon them by the trial judge in the Federal Court.  The Full Court of the Federal Court, by majority (Middleton and Gordon JJ with Moore J partly in dissent), have rejected the appeals and the trial judge’s level of  penalties stands.

The CFMEU and Mr Mates, had been charged under s 43 of the Building and Construction Industry Improvement Act 2005.  Section 43 creates an offence of organising or taking action, or threatening to organise or take action, in order to coerce a company to employ a person as an employee or contractor or, allocate them particular responsibilities[14]. The events occurred at a building site at Mount Street, Heidelberg in Victoria on the 15 February 2006, the 17 February 2006 and the 21 February 2006.  The Appellants’ argument was that the events on the 15 and 17 February 2006, should have been treated  not  as separate offences but, as one course of conduct.  Further, that the penalties imposed were argued to be  manifestly excessive.

In dissent, Justice Moore found that the events of the 15 and 17 February 2006, were not just similar, but were the same and, as a consequence should have been treated as one course of conduct.  The majority judgment, however, found that in having regard to the  criminal law principle of  ‘course of conduct’, such a principle is recognised in the proper exercise of the sentencing discretion.  They said,

“The principle recognised is that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality.”  [39]

This principle it was said, was recently summarised in an industrial context in CFMEU ats Williams (2009) 262 ALR 417 at [14] – [26].  The majority found that the trial judge’s rejection of the single course of conduct submission was determined because the conduct occurred on different dates, with different participants and in different contexts.  Notwithstanding that, her Honour did take into account the ‘not being punished twice’ principle by having regard to the related  totality principle, in that where penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties are just and appropriate to the circumstances of the case [45]. In dealing with the CFMEU’s contention that the penalties imposed on the organisation were manifestly excessive, the majority found that the Appellant must prove that the sentence is unreasonable or plainly unjust [50] or, to succeed, it must prove the sentence was “wholly outside the range of sentencing options available” to the sentencing Judge [51]. The majority found that the contravention was serious and done in a deliberate disregard of applicable legislation [52]. This ground of the appeal also failed.

One can see why the CFMEU and other unions in the building industry have for a long time sought to have the Office of the Australian Building and Construction Commissioner(ABCC) abolished. The CFMEU have been the subject of many such prosecutions which have led to the imposition of  significant fines.  A short perusal of the website of the ABCC will show that of the five upcoming court cases listed on that webpage, all are against the CFMEU and various individuals.  By the same token, the CFMEU once again proves itself to be a union, which resolutely, albeit sometimes on the wrong side of  statutory restraints, stands up its members. Perhaps the fines are just the cost of doing its business  . Such behaviour does engender profound loyalty amongst  its membership which, the CFMEU clearly has.  It is also one of the few unions that still creates work for lawyers.

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