FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALFRED v PRIMMER & ORS (No.2) | [2008] FMCA 1476 |
| INDUSTRIAL LAW – Union official advising and encouraging prejudicial alteration in independent contractor’s position for a prohibited reason – liability of union for officer’s contravening conduct – union’s liability as principal – union’s vicarious liability – civil penalty proceedings – standard of proof – div.2 of Pt.16 of Workplace Relations Act 1996 not an independent source of liability. WORDS and PHRASES – “proceeding” – “proceeding under an industrial law” – “advise” – “encourage” – “person”. |
| Workplace Relations Act 1996, ss.4, 16, 285A, 420, 779, 783, 785, 792, 793, 800, 807, 809, 826 Industrial Relations Act 1988 (Cth), ss.335, 349 Industrial Relations Act 1996 (NSW), ss.130, 209, 222 Acts Interpretation Act 1901, s.22 |
| Applicant: | GREGORY CHARLES ALFRED |
| First Respondent: | PETER PRIMMER |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Third Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) |
| File Number: | SYG 1222 of 2007 |
| Judgment of: | Cameron FM |
| Hearing dates: | 22 & 26 September 2008 |
| Date of Last Submission: | 26 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr I. Neil S.C. with Mr C. Bolger |
| Solicitors for the Applicant: | Bartier Perry |
| Counsel for the Respondents: | Mr J.H. Pearce |
| Solicitors for the Respondents: | Taylor & Scott |
ORDERS
THE COURT DECLARES THAT:
On 12 October 2006 at Kiama between 8.00am and 11.00am the first respondent contravened s.800(1)(a) of the Workplace Relations Act 1996
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- AGLC
- Alfred v Primmer & Ors (No.2) [2008] FMCA 1476
- Case
- [2008] FMCA 1476
- Decision Date
CaseChat Overview and Summary
The court held that the union could indeed be held liable for the contravening conduct of an officer if it was acting within the scope of their actual or apparent authority. The court found that Primmer, as an officer of the union, was acting within the scope of his authority when he advised and encouraged the alteration in the plaintiff's position. The court further held that the union could be held vicariously liable for the actions of its officer if the actions were done in the course of employment. The court found that Primmer's actions were done in the course of employment, and therefore, the union could be held vicariously liable.
The court also held that the standard of proof in civil penalty proceedings under the Act was not an independent source of liability. The court found that the unions were liable for the contravening conduct of Primmer under sections 800(1)(a) and 826(2) of the Act. The court further held that the unions were liable for the contravening conduct of Primmer as principals under sections 779(2) and 826(2) of the Act.
The court declared that the respondents contravened sections 800(1)(a) and 792(5) of the Act by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act. The court also ordered that the respondents' application in a case filed on 7 April 2008 be refused and that the further hearing of the application be adjourned to 10:15am on a date to be fixed.
Orders
Orders of the court
THE COURT DECLARES THAT:
1.
On 12 October 2006 at Kiama between 8.00am and 11.00am the first respondent contravened s.800(1)(a) of the Workplace Relations Act 1996 (“Act”) by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.
2.
On 12 October 2006 at Kiama between 8.00am and 11.00am the second respondent contravened s.800(1)(a) of the Act by reason of the conduct of the first respondent who was its officer, employee and agent acting in that capacity by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.
3.
On 12 October 2006 at Kiama between 8.00am and 11.00am the third respondent contravened s.800(1)(a) of the Act by reason of the conduct of the first respondent who was its officer, employee and agent acting in that capacity by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.
4.
On 12 October 2006 at Kiama between 11.00am and 12.00pm the first respondent contravened s.800(1)(a) of the Act by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.
5.
On 12 October 2006 at Kiama between 11.00am and 12.00pm the second respondent contravened s.800(1)(a) of the Act by reason of the conduct of the first respondent who was its officer, employee and agent acting in that capacity by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.
6.
On 12 October 2006 at Kiama between 11.00am and 12.00pm the third respondent contravened s.800(1)(a) of the Act by reason of the conduct of the first respondent who was its officer, employee and agent acting in that capacity by advising and encouraging Camarda & Cantrill Pty Ltd to take action in relation to Fine Line Painting (Aust) Pty Ltd that would, if taken, have contravened s.792(5) of the Act.
THE COURT ORDERS THAT
7.
The respondents’ application in a case filed on 7 April 2008 be refused.
8.
The further hearing of the application be adjourned to 10:15am on a date to be fixed.
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
Regard can also be had to s.222 of the IRA which provides:222 Incorporation of State organisations on registration A State organisation, when registered under this Chapter: (a) is a body corporate, and (b) has perpetual succession, and (c) has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with any real or personal property, and (d) is required to have a seal, and (e) may sue or be sued in its registered name. Section 779(1) of the Act also relevantly provides:“industrial association” means: (a)an association of employees and/or independent contractors, or an association of employers, that is registered or recognised as such an association (however described) under an industrial law; or (b)an association of employees and/or independent contractors a principal purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors, as the case requires; or (c)…and includes a branch of such an association, and an organisation.and“industrial law” means this Act, the Registration and Accountability of Organisations Schedule or a law, however designated, of the Commonwealth or of a State or Territory that regulates the relationships between employers and employees or provides for the prevention or settlement of disputes between employers and employees. As to the mechanism by which the two unions may have statutory liability as principals for Mr Primmer’s conduct, it may be, as the respondents submit, that s.826(2) duplicates s.779(2) in a fashion requiring the more specific of the two provisions to take precedence over the more general of the two, but I do not need to resolve this issue. The matter is of no practical significance because Mr Primmer’s conduct falls within both ss.779(2) and 826(2) with the consequence that it is thereby also the conduct of the CFMEU and the CFMEU (NSW). I therefore find in respect of each of the conversations quoted above at [9(b)] and [9(d)] that the CFMEU and the CFMEU (NSW) breached s.800(1)(a). In such circumstances I do not need to consider the respondents’ submissions concerning whether the unions might or might not also have common law liability as principals for Mr Primmer’s conduct in breach of the Act. Although both unions denied that the conduct alleged against Mr Primmer was within the scope of his actual or apparent authority as one of their officers and employees, the evidence satisfies me that the allegation is made out. The CFMEU obtained for Mr Primmer his permit under the Act to enter and inspect premises in which he is described as an employee of the New South Wales divisional branch of the CFMEU. The CFMEU(NSW) admitted that in his capacity as an authorised industrial officer of that union Mr Primmer held an authority to enter premises issued by the New South Wales Industrial Registrar pursuant to s.209 of the IRA. It also admitted that, during the period 1 January 2006 to 1 December 2006 Mr Primmer, in his capacity as an officer and/or employee of the CFMEU(NSW), performed tasks that involved:a)dealing with employers and employees;b)encouraging and assisting in employees to become or remain members of the CFMEU and/or CFMEU(NSW);c)checking union membership;d)ensuring compliance with industrial laws and instruments, including agreements and awards;e)checking wages and conditions under which workers were employed;f)ensuring employees received their entitlements under industrial laws and instruments;g)participating and dealing in industrial disputes;h)participating in proceedings under industrial laws; andi)pursuing claims for unpaid employee entitlements with employees.Given the interconnectedness of Mr Primmer’s positions in the state and federal unions, I infer that his role in the CFMEU involved the same or similar activities.