Alfred v Primmer & Ors (No.2)

The case of Alfred v Primmer & Ors (No.2) involved a dispute under the Workplace Relations Act 1996. The plaintiff, Alfred, brought proceedings against the respondents, Primmer, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), and the CFMEU (NSW), for allegedly contravening sections of the Act. Specifically, the plaintiff alleged that the respondents had advised and encouraged a prejudicial alteration in his position as an independent contractor for a prohibited reason. The legal issues before the court were whether the union could be held liable for the contravening conduct of an officer and whether the union could be held vicariously liable for the actions of its officer.

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.