Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

The Australian Building and Construction Commissioner filed a complaint against the Construction, Forestry, Mining and Energy Union (CFMEU) in the Federal Circuit and Family Court of Australia. The dispute arose from allegations that the CFMEU had called a series of twice-daily, two-hour union meetings on a construction site, which led to workers being diverted from their work and the complete cessation of work. The Commissioner alleged that these actions were unlawful, illegitimate, and unconscionable, and that they contravened sections 343 and 348 of the Fair Work Act 2009 (Cth).

The court was required to determine whether the CFMEU's conduct amounted to unlawful, illegitimate, or unconscionable conduct under the Fair Work Act 2009 (Cth), and whether there was a disproportionality between the legitimate interests claimed by the respondents and the effect of their actions in pursuit thereof. The court also needed to consider the effect of section 361 of the Fair Work Act 2009 (Cth) on the onus when the respondents called no evidence, and whether the two-hour union meetings constituted unlawful conduct under the tort of intentionally procuring a breach of contract.

The court found that the CFMEU had failed to establish that its conduct was not illegitimate. It followed that the CFMEU took action against Hansen Yuncken with intent to coerce it to exercise a workplace right and to engage in industrial activity in contravention of sections 343 and 348 of the Fair Work Act 2009 (Cth). The court concluded that the CFMEU had failed to discharge its onus with respect to the first two elements of the contravention, and that the Commissioner had established that the CFMEU took action against Hansen Yuncken with intent to coerce it to exercise a workplace right and to engage in industrial activity in contravention of sections 343 and 348 of the Fair Work Act 2009 (Cth).

The court proposed to make declarations of contravention against each of the respondents consistent with these reasons and required the Commissioner to prepare and submit an appropriate set of declarations which achieve that purpose. The court also proposed to hear the parties on an appropriate program for a hearing to determine what penalties should be imposed on the respondents for their contraventions of sections 343 and 348 of the Fair Work Act 2009 (Cth).