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

The Australian Building and Construction Commissioner (ABCC) brought proceedings against the Construction, Forestry, Mining and Energy Union (CFMMEU) and an individual, alleging contraventions of the *Fair Work Act 2009* (Cth) (FW Act). The dispute concerned alleged unlawful industrial action and coercion by the CFMMEU and its representative against a building contractor, involving demands for the contractor to cease using non-union labour and to enter into an enterprise agreement that included specific clauses. The proceedings were heard in the Federal Court of Australia.

The central legal issues before the Full Federal Court were whether the actions of the CFMMEU and its representative constituted unlawful coercion under section 346 of the FW Act, and whether these actions also amounted to unlawful industrial action under section 417 of the FW Act. Specifically, the court had to determine if the demands made by the union and its representative were intended to coerce the employer into taking or not taking certain actions, and if these demands constituted a stoppage of work or a hindrance to the employer’s operations.

The Full Federal Court found that the conduct of the CFMMEU and its representative did amount to unlawful coercion under section 346 of the FW Act. The court reasoned that the demands made, including the requirement to cease using non-union labour and to enter into a specific enterprise agreement, were intended to pressure the employer into acting contrary to its own interests or to take actions it was not legally obliged to take. The court also determined that this conduct constituted unlawful industrial action under section 417 of the FW Act, as it involved a concerted refusal to perform work or a hindrance to the employer's operations, motivated by the union's demands. The court applied the principles of statutory interpretation to the relevant provisions of the FW Act, focusing on the intent and effect of the union's actions.

The Full Federal Court upheld the primary judge's findings and ordered that the CFMMEU and the individual respondent were liable for contraventions of the FW Act. The matter was remitted to the Federal Court for the determination of penalties.