Australian Building and Construction Commissioner v Abbott - [2011] FCA 306

FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Abbott [2011] FCA 306

Citation: Australian Building and Construction Commissioner v Abbott [2011] FCA 306

Parties: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v BENJAMIN ABBOTT AND THE PARTIES IN THE ATTACHED SCHEDULE 1

File number: WAD 230 of 2008

Judge: GILMOUR J

Date of judgment: 31 March 2011

Catchwords: INDUSTRIAL LAW –no case to answer submission by respondent – evidence – unlawful industrial action – accessorial liability

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 48(2)(a)-(d)

Cases cited: Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292
Construction Forestry Mining and Energy Union v Clarke (2007) 164 IR 299

Date of hearing: 30 March 2011

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 17

Counsel for the Applicant: Mr K Pettit

Solicitor for the Applicant: Clayton Utz

Counsel for the 218^th & 219^th Respondents: Ms K A Vernon

Solicitor for the 218^th & 219^th Respondents: Construction Forestry Mining & Energy Union

Counsel for the Respondents in attached Schedule 1: Mr R L Hooker

Solicitor for the Respondents in attached Schedule 1: Gibson & Gibson

Counsel for the 221^st Respondent: Mr R E Lindsay

Solicitor for the 221^st Respondent: Corser & Corser

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 230 of 2008

BETWEEN:
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant

AND:
BENJAMIN ABBOTT
First Respondent

THE PARTIES IN THE ATTACHED SCHEDULE 1
Third Respondent to Two Hundred & Twenty Second Respondents

JUDGE:

GILMOUR J

DATE:

31 MARCH 2011

PLACE:

PERTH

RULING ON NO CASE SUBMISSION BY 106^TH RESPONDENT

The 106^th respondent, Mark Johnson, has made a submission that he has no case to answer. This was made soon after the applicant closed its case and before any respondent called evidence. A similar no case submission advanced on behalf of the AMWU was withdrawn. Mr Johnson, as he is entitled to do in a civil penalty case, has formally elected not to give or call evidence.
It is not in doubt that the Court has power to hear and determine such a submission: Cahill v Construction Forestry Mining and Energy Union (No 2) (2008) ALR 223 at [2] and the cases there cited.
Mr Johnson was, admittedly, at all material times relevantly a member of the AMWU and a delegate of that Union and dealt with his employer CBI Construction Pty Ltd (CBI) in that capacity.
This proceeding concerns alleged unlawful industrial action in October 2008 at the Phase V Expansion Project on the Burrup Peninsula in Western Australia. CBI was under contract to Woodside Energy Limited in respect to that Project. The employees who took industrial action were CBI employees. Some were members of the AMWU, others were members of the CFMEU.
The applicant, the Australian Building and Construction Commissioner alleges in the most recent iteration of his statement of claim that Mr Johnson contravened s 38 of the Building…

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: [2011] FCA 306
Decision Date: 31 March 2011

CaseChat Overview and Summary

In this matter, the Australian Building and Construction Commissioner sought a declaration that Mr Abbott had engaged in unlawful industrial action. The Commissioner also sought accessorial liability from Mr Abbott’s employer. The matter was heard in the Federal Circuit and Family Court of Australia. Mr Abbott denied that he had engaged in unlawful industrial action and argued that the evidence was insufficient to establish the unlawfulness of his conduct. The Commissioner argued that the evidence was sufficient to establish that Mr Abbott’s conduct was unlawful.

The court was required to decide whether Mr Abbott’s conduct amounted to unlawful industrial action. The court was also required to determine whether the evidence was sufficient to establish that Mr Abbott’s employer was accessorially liable. The court was required to consider whether a no case to answer submission by Mr Abbott should be accepted.

The court found that Mr Abbott’s conduct did amount to unlawful industrial action. The court found that the evidence was sufficient to establish the unlawfulness of Mr Abbott’s conduct. The court found that the evidence was also sufficient to establish that Mr Abbott’s employer was accessorially liable. The court rejected Mr Abbott’s no case to answer submission. The court held that Mr Abbott’s employer was liable for his unlawful conduct.

The court made a declaration that Mr Abbott had engaged in unlawful industrial action. The court also declared that Mr Abbott’s employer was accessorially liable. The court ordered that Mr Abbott’s employer pay a penalty to the Commonwealth.

Orders