Alfred v CFMEU and Ors (No.2) - [2009] FMCA 1003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALFRED v CFMEU & ORS (No.2)

[2009] FMCA 1003

INDUSTRIAL LAW – Contravention of freedom of association protections – union organiser’s coercion of subcontractor and his workers to become members of union – union organisations liable for his conduct – penalties of $2,600 and $13,000 imposed on organiser and unions.

Building and Construction Industry Improvement Act 2005 (Cth)
Federal Magistrates Court Rules 2001 (Cth), r.26.01
Federal Magistrates Act 1999 (Cth), ss.42, 77, 77(2)
Workplace Relations Act 1996 (Cth), ss.778(a), 779, 779(2), 779(2)(b), 789, 807, 807(1), 807(1)(a), 807(2), 807(3), 841, Pt.16

Alfred v Construction, Forestry, Mining & Energy Union & Ors [2009] FMCA 613
Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith [2008] FCAFC 8
Cahill v Construction, Forestry, Mining & Energy Union (No 4) [2009] FCA 1040
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Construction, Forestry, Mining & Energy Union v Hadgkiss [2009] FCAFC 17
Draffin v Construction, Forestry, Mining & Energy Union [2009] FCAFC 120
Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Stuart v Construction, Forestry, Mining & Energy Union [2009] FCA 1119
TWU v DHL Exel Supply Chain (Australia) Pty Ltd (No.2) [2008] FMCA 920
Williams v Construction, Forestry, Mining & Energy Union (No 2) (2009) 182 IR 327

Applicant:

GREGORY CHARLES ALFRED

First Respondent:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Second Respondent:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (NEW SOUTH WALES BRANCH)

Third Respondent:

SAMMY MANNA

File Number:

SYG 870 of 2008

Judgment of:

Smith FM

Hearing date:

11 September 2009

Delivered at:

Sydney

Delivered on:

20 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr J J E Fernon SC and Ms E Raper

Solicitors for the Applicant:

Freehills

Counsel for the Respondents:

Mr J Pearce

Solicitors for the Respondents:

Taylor & Scott

ORDERS

There is imposed on the third respondent pursuant to s.807(1)(a) of the Workplace Relations Act 1996 (Cth) a penalty in the amount of $2,600 for his contravention of s.789 of that Act.
There is imposed on the first respondent pursuant to s.807(1)(a) and s.779(2)(b) of the Workplace Relations Act 1996 (Cth) a penalty in the amount of $13,000 for its contravention of s.789 of that Act by reason of the conduct of the third respondent.
There is imposed on the second respondent pursuant to s.807(1)(a) and s.779(2)(b) of the Workplace Relations Act 1996 (Cth) a penalty in the amount of $13,000 for its contravention of s.789 of that Act by reason of the conduct of the third respondent.
The application is otherwise dismissed.
The penalties payable under orders 1, 2, and 3 must be paid to the Commonwealth pursuant to s.841 of the Act.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 870 of 2008

GREGORY CHARLES ALFRED

Applicant

And

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

First Respondent

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (NEW SOUTH WALES BRANCH)

Second Respondent

SAMMY MANNA

Third Respondent

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCA 1003
Decision Date: 20 October 2009

CaseChat Overview and Summary

Alfred initiated legal proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and two other parties, asserting breaches of the Workplace Relations Act 1996 (Cth). The primary dispute centred around alleged contraventions of Section 789 of the Act, with claims against both individual and corporate respondents for their involvement. The case was heard and determined by a court with jurisdiction over workplace relations matters in Australia.

The court was tasked with determining whether the respondents had indeed contravened Section 789 of the Act and, if so, to what extent each party was liable. Additionally, the court had to ascertain the appropriate penalties under Section 807(1)(a) of the Act for each respondent found in breach. The legal issues also included whether the corporate respondents could be held vicariously liable for the actions of their employee, the third respondent.

After reviewing the evidence and arguments presented, the court found that the third respondent had contravened Section 789 of the Act. Consequently, a penalty of $2,600 was imposed on the third respondent. The court further determined that the first and second respondents, being corporate entities, were vicariously liable for the actions of the third respondent, each attracting a penalty of $13,000. The court declined to impose any additional penalties or make other orders as requested by Alfred. The penalties were to be paid to the Commonwealth as per Section 841 of the Act.

Orders

Orders of the court

There is imposed on the third respondent pursuant to s.807(1)(a) of the Workplace Relations Act 1996 (Cth) a penalty in the amount of $2,600 for his contravention of s.789 of that Act.

There is imposed on the first respondent pursuant to s.807(1)(a) and s.779(2)(b) of the Workplace Relations Act 1996 (Cth) a penalty in the amount of $13,000 for its contravention of s.789 of that Act by reason of the conduct of the third respondent.

There is imposed on the second respondent pursuant to s.807(1)(a) and s.779(2)(b) of the Workplace Relations Act 1996 (Cth) a penalty in the amount of $13,000 for its contravention of s.789 of that Act by reason of the conduct of the third respondent.

The application is otherwise dismissed.

The penalties payable under orders 1, 2, and 3 must be paid to the Commonwealth pursuant to s.841 of the Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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