Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case)

In the matter of Australian Building and Construction Commission versus the Construction, Forestry, Mining and Energy Union, also known as the Kane Constructions Case, the Federal Court was tasked with determining whether the union organisers were liable for industrial action engaged in by employees on construction sites. The dispute arose from stop-work meetings and walk-offs which were alleged to have been organised by union representatives. The crux of the case revolved around whether these actions constituted protected industrial activities and whether the organisers could be held accountable as accessories if they knew that the employees were covered by an enterprise agreement.

The legal issues that the court had to address included whether the meetings and walk-offs organised by the union representatives constituted industrial action, and if so, whether these actions contravened the enterprise agreement. Another significant issue was whether the union organisers could be held liable as accessories to the contraventions if they were aware that the employees were covered by the agreement. The court also had to consider whether the conduct of the organisers could be attributed to the union, and whether the union organisers’ entry into construction sites in defiance of the builder's right of entry procedures amounted to an implied request or requirement that such procedures be relaxed or not applied.

The Federal Court found that the industrial action engaged in by the employees was indeed organised by the union representatives. However, the court held that the union organisers were not liable as accessories to the contraventions since it was not established that they knew the employees were covered by an enterprise agreement. The court also determined that the union organisers' conduct could not be attributed to the union. Regarding the right of entry, the court ruled that the union organisers' defiance of the builder's procedures did not amount to an implied request or requirement that such procedures be relaxed or not applied. The court ordered that the proceeding be listed for the purpose of receiving the parties’ submissions on the terms of the orders proper to reflect the reasons of the court and as to penalties.