Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 138

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed on Grounds 8(a) and (b), 21(a) and (b) and 25 of the Amended Notice of Appeal dated 8 June 2022.

2.    The appeal be otherwise dismissed without adjudication of the merits of the remaining grounds of appeal.

3.    The orders made by the primary Judge in VID625 of 2020, dated 16 November 2021, be set aside.

4.    The matter be remitted for rehearing before a single Judge in the original jurisdiction of this Court.

5.    There be no order as to the costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

THE COURT:

1    After an exchange with counsel for the appellant Commissioner and the respondents and a short adjournment, we were jointly informed on a resumption of the hearing that the parties were agreed that:

(a)    the appeal should be allowed in respect of grounds 8(a) and 8(b), 21(a) and 21(b) and 25 in the amended notice of appeal;

(b)    otherwise the appeal should be dismissed, without embarking on a consideration of the merits of the remaining grounds in the amended notice of appeal.

2    Consequentially, it was agreed that the orders as made by the court in the original court in Australian Building and Construction Commissioner and Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) [2021] FCA 1414 on 16 November 2021 should be set aside and that the matter should be remitted to the original jurisdiction for rehearing according to law.

3    Agreement does not in itself confer a basis for the exercise of appellate jurisdiction so as to allow an appeal: Telstra Corporation Limited v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64. But where, as here, that agreement reflects errors which are, at least, arguable, it would not be for the Court to do otherwise than accept that agreement.

4    The notice of appeal as amended also makes reference to an alleged error of principle by the primary judge in relation to the principles for the imposition of penalties under the Fair Work Act 2009 (Cth) having regard to the High Court’s judgment in Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426 (Pattinson). At the time when the learned primary judge came to impose penalties, Pattinson was the subject of an extant application for special leave to the High Court from the Full Court’s judgment in that case (see Pattinson v Australian Building and Construction Commissioner [2020] 384 ALR 75).

5    Upon interrogation of the parties by their counsel with respect to the grounds which raise an error based on Pattinson, namely, grounds 42 and 43 of the amended notice of appeal, we were informed that, given the particular conceded errors, the question as to the application of Pattinson fell for submission, having regard to the whole of the facts as determined in the original jurisdiction in light of the conceded errors. It was for that reason that we were not asked to embark upon a consideration of grounds 42 and 43. It does seem to us that, in light of the conceded errors, there were in any event, errors of principle in relation to the exercise of the sentencing discretion, such that the application of Pattinson must necessarily fall for consideration in light of the facts as found in the original jurisdiction.

6    For these reasons, we consider it appropriate not to embark upon on a consideration of Pattinson. That will be a matter for submissions in the original jurisdiction. The other grounds which are not the subject of adjudication are unnecessary for us to adjudicate in light of the conceded errors. For these reasons, there will be orders in terms proposed by the parties.

Associate:    

Dated:    19 August 2022