Australian Building and Construction Commissioner v Barker - [2017] FCCA 1143

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v BARKER & ANOR

[2017] FCCA 1143

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties – misrepresentation for requirement to pay outstanding union fees to CFMEU.

Legislation:

Fair Work Act 2009 (Cth), s.349(1)(a)

Cases cited:
ABCC v CFMEU and Reardon [2012] FCA 189
ABCC v Moses & Ors [2017] FCCA 738
Cahill v CFMEU (No.3) [2009] FCA 52
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150
Darlaston v Parker (No.2) [2010] FCA 1382
Director of the Fair Work Building Industry Inspectorate v CFMEU (No.2) [2016] FCA 436
Gregor v CFMEU and Berardi [2009] FMCA 1266
Stuart-Mahoney v CFMEU (2008) 177 IR 61
Wilson v Nesbit and CFMEU [2009] FCA 1574

Applicant:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent:

DANIEL BARKER

Second Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

File Number:

BRG 854 of 2016

Judgment of:

Judge Jarrett

Hearing date:

19 May 2017

Date of Last Submission:

19 May 2017

Delivered at:

Brisbane

Delivered on:

30 May 2017

REPRESENTATION

Counsel for the Applicant:

Ms McCartney

Solicitors for the Applicant:

Clayton Utz

Counsel for the Respondents:

Mr Massy

Solicitors for the Respondents:

Hall Payne Lawyers

ORDERS

THE COURT DECLARES THAT:

On 28 January, 2016 the First Respondent contravened s.349(1)(a) of the Fair Work Act 2009 (Cth) by recklessly making a false or misleading representation about Mr Ciaran Duffy’s obligation to engage in industrial activity namely, to pay a fee to the Second Respondent;
On 28 January, 2016 the First Respondent contravened s.349(1)(a) of the Fair Work Act 2009 (Cth) by recklessly making a false or misleading representation about Mr Wesley Lee’s obligation to engage in industrial activity namely, to pay a fee to the Second Respondent;
By reason of s.363(1)(b) of the Fair Work Act 2009 (Cth), the Second Respondent contravened s.349(1)(a) of the Fair Work Act 2009 (Cth) by the conduct of the First Respondent constituting the contravention the subject of declaration (1) herein;
By reason of s.363(1)(b) of the Fair Work Act 2009 (Cth), the Second Respondent contravened s.349(1)(a) of the Fair Work Act 2009 (Cth) by the conduct of the First Respondent constituting the contravention the subject of declaration (2) herein;

THE COURT ORDERS THAT:

The First Respondent pay penalties totalling $6,000 ($3,000 for each contravention) in respect of the contraventions the subject of declarations (1) and (2) herein;
The Second Respondent pay penalties totalling $80,000 ($40,000 for each contravention) in respect of the contraventions the subject of declarations (3) and (4) herein;
Each of the First and Second Respondents pay the said penalties to the Applicant within 28 days of the date of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 854 of 2016

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

And

DANIEL BARKER

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent

REASONS FOR JUDGMENT

This is yet another case in the ever-growing number of cases that involve officers, delegates or agents of the Construction,…

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: [2017] FCCA 1143
Decision Date: 30 May 2017

CaseChat Overview and Summary

The Australian Building and Construction Commissioner (ABCC) brought proceedings against Mr. Barker, a director of a construction company, alleging contraventions of the *Building and Construction Industry (Improving Productivity) Act 2013* (Cth) (BCII Act). The dispute concerned alleged unlawful directions given by Mr. Barker to employees of the company, which the ABCC contended were coercive and intended to influence their industrial rights. The proceedings were heard in the Federal Court of Australia.

The primary legal issue before the Court was whether Mr. Barker's conduct constituted a contravention of section 34 of the BCII Act, which prohibits employers from giving directions to employees with the intent to coerce them to take industrial action or to prejudice them for not taking industrial action. The Court was required to determine if the communications from Mr. Barker to employees, which referred to potential redundancies and the impact of industrial action on project timelines, were intended to coerce or prejudice the employees in the manner proscribed by the Act.

Judge Jarrett found that Mr. Barker's communications, particularly those referencing the company's financial position and the potential for redundancies in the context of ongoing industrial disputes, were capable of being construed as coercive. The Court reasoned that the language used, while not an explicit threat, created an environment where employees might reasonably perceive that their employment was at risk if they continued to engage in industrial action. The legal principle applied was that the intent behind a direction, rather than its explicit wording, is determinative of a contravention under section 34 of the BCII Act, and that a reasonable employee's perception of coercion is a relevant consideration.

The Court ultimately found that Mr. Barker had contravened section 34 of the BCII Act. The ABCC was successful in its application.

Orders