Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Syme Library Case)

The Australian Building and Construction Commissioner filed an application against the Construction, Forestry, Mining and Energy Union, its officer, a subcontractor on a building site, and employees of that subcontractor. The Commissioner alleged contraventions of sections 340, 343, 345, 348, 349, and 354 of the Fair Work Act 2009 (Cth). The dispute centred on whether these contraventions were established, the liability of the union for the conduct of its officer, and the liability of the subcontractor for the conduct of its employees. The matter was heard over five days from 13 February 2017. The facts of the alleged contraventions were largely undisputed, though there were significant conflicts in the evidence. The central issue was whether the union officer's actions constituted discriminatory conduct against a subcontractor due to the subcontractor's employees not being covered by an enterprise bargaining agreement.

The court considered the standard of proof required for civil remedy provisions, noting that adverse findings are not made lightly. It examined the reverse onus provisions in sections 361 and 362 of the Fair Work Act. The court found that the union officer directed the subcontractor's employees not to work, thereby discriminating against the subcontractor, and that this was presumed to be due to the employees not being covered by an enterprise agreement. Consequently, the court held that the union officer contravened section 354 of the Act. The court also assessed the union's liability for the conduct of its officer, concluding that the union was liable for the officer's actions under the relevant provisions of the Act. Finally, the court found the subcontractor liable for the conduct of its employees in relation to the alleged contraventions.

The final orders included setting a further hearing date, specifying deadlines for filing affidavits and written submissions on penalties, and outlining the procedural steps for the submission of evidence.