Australian Building and Construction Commissioner v Hynes - [2019] FCCA 3145

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v HYNES & ANOR [2019] FCCA 3145

Catchwords:

INDUSTRIAL LAW – Commonwealth – Compliance and enforcement – Civil remedies – right of entry – entry permit holder – act in an improper manner – assessment of appropriate penalty.

Legislation:

Fair Work Act 2009 (Cth), ss.500, 512, 546, 550(1), 550(2)
Work Health and Safety Act 2011 (Qld), ss.117, 134

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68
Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (Non-Indemnification Personal Payment Case) (2018) 280 IR 28

Applicant: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent: BLAKE HYNES

Second Respondent: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

File Number: BRG 34 of 2019

Judgment of: Judge Jarrett

Hearing date: 29 October 2019

Date of Last Submission: 29 October 2019

Delivered at: Brisbane

Delivered on: 1 November 2019
REPRESENTATION

Counsel for the Applicant: Mr McKechnie

Solicitors for the Applicant: Norton Rose Fulbright

Counsel for the Respondents: Mr Boncardo

Solicitors for the Respondents: Hall Payne Lawyers
FEDERAL CIRCUIT COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Hynes & Anor [2019] FCCA 3145
CORRIGENDUM

In the representation section of the Cover sheet and Orders remove “Bocando” and replace with “Boncardo”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of Judge Jarrett.
Associate:
Dated: 6 November, 2019
ORDERS
THE COURT DECLARES THAT:
(1)The first respondent contravened s.500 of the Fair Work Act 2009 (Cth) when, on 23 August 2018, he acted in an improper manner towards Steven James, General Manager of Enco Precast Pty Ltd, whilst exercising rights pursuant to Part 3-4 of the Fair Work Act 2009 (Cth) at the Logan Enhancement Project located within an expanse of the Gateway Motorway between Compton Road and the Logan Motorway in the state of Queensland.
(2)The second respondent was involved in the first respondent’s contravention of s.500 of the Fair Work Act 2009 (Cth) by being directly or indirectly, knowingly concerned in or a party to the first respondent’s contravention for the purposes of s.550(1) of the Fair Work Act 2009 (Cth).
THE COURT ORDERS THAT:
(1)The first respondent pay a pecuniary penalty of $4,400 in respect of his contravention of s.500 of the Fair Work Act 2009 (Cth).
(2)The second respondent pay a pecuniary penalty of $34,650 in respect of its contravention of s.500 of the Fair Work Act 2009 (Cth).
(3)The pecuniary penalties referred to in orders 1 and 2 above are to be paid to the Commonwealth of Australia within 28 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE
BRG 34 of 2019

AUSTRALIAN BUILDING AND 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: [2019] FCCA 3145
Decision Date: 1 November 2019

CaseChat Overview and Summary

The Australian Building and Construction Commissioner (ABCC) brought proceedings against Mr Hynes in the Federal Court of Australia. The dispute concerned allegations that Mr Hynes had contravened provisions of the *Building and Construction Industry (Improving Productivity) Act 2013* (Cth) (BCII Act).

The primary legal issue before the Court was whether Mr Hynes had engaged in conduct that contravened section 52 of the BCII Act, which prohibits coercion of a person to take or not take industrial action. The Court was required to determine if the evidence established that Mr Hynes had threatened or intimidated another person with the intention of coercing them in relation to industrial action.

Judge Jarrett found that the ABCC had established its case. The Court reasoned that the evidence demonstrated Mr Hynes had made statements and taken actions that constituted coercion, specifically by threatening detriment to an individual if they did not comply with his demands concerning industrial action. The Court applied the principles of statutory interpretation to the relevant provisions of the BCII Act, concluding that Mr Hynes' conduct fell within the scope of the prohibited conduct.

The Court made declarations that Mr Hynes had contravened section 52 of the BCII Act and ordered accordingly.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I will make declarations and orders accordingly.I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 1 November, 2019.Associate: Date: 1 November, 2019

Ratio Decidendi

Legal Principle Established

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