Australian Building and Construction Commissioner v Hall

In the case of Australian Building and Construction Commissioner v Hall, the Australian Building and Construction Commissioner sought to hold several respondents, including the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and individuals associated with it, liable for various contraventions related to industrial action taken at a construction site. The court was tasked with determining whether the respondents had indeed contravened the Fair Work Act 2009 (Cth) by taking adverse action against a construction company, Built, and whether the CFMEU could be held vicariously liable for the actions of its members. The case hinged on the credibility of the evidence presented by both the Director and the respondents, particularly that of a key witness, Mr Kivalu, whose testimony was ultimately deemed unreliable.

The court considered several key issues, including the burden of proof required to establish contraventions under the Fair Work Act, the intent behind the industrial action, and whether the action had the effect of coercing the construction company. The court also had to assess the credibility of Mr Kivalu's testimony, who had made an arrangement with prosecutors in a separate criminal case, and whether this affected his reliability as a witness. The reliability of Mr Kivalu's evidence was particularly critical as it directly implicated several of the respondents in the alleged contraventions.

The court concluded that the Director had failed to discharge the onus of proof required to establish the contraventions, primarily due to the unreliability of Mr Kivalu's evidence and inconsistencies in the testimonies of other witnesses. The court emphasised that the demeanour of a witness, while a factor to be considered, was an uncertain measure of reliability. The court found that the respondents had successfully discharged the onus of proof required by section 361 of the Fair Work Act, which shifted the burden to them once the Director established a prima facie case. The court found discrepancies in the testimonies of both the Director's and respondents' witnesses and determined that the Director's case substantially failed due to the lack of credible evidence.

As a result, the court rejected the claims made by the Director against the respondents. The court ordered that the parties prepare Short Minutes of Orders to formalise these findings within fourteen days. This decision underscored the importance of credible evidence in industrial law disputes and highlighted the challenges in assessing witness reliability and the credibility of conflicting testimonies.