Australian Building and Construction Commissioner v Molina

In the case of Australian Building and Construction Commissioner v Molina, the appellant, the Australian Building and Construction Commissioner, sought to appeal a decision by the primary judge that dismissed their application for declarations that the respondents had contravened sections 346(b) and 348 of the Fair Work Act 2009. The dispute centred around whether the primary judge had correctly interpreted the sections in question and whether the actions of the respondents constituted adverse action. The respondents contended that the primary judge had correctly applied section 361 of the Act, which places the onus of proof on the party alleging the contravention. They also argued that the threats made by Mr Molina, on behalf of the union, were not coercive as required by section 348.

The court examined whether the primary judge had erred in their interpretation of section 346, particularly regarding when a threat to take action would constitute adverse action. The court also considered whether the presumption in section 361 applied to allegations that a person threatened to take action with intent to coerce. The court concluded that the primary judge had not erred in their approach to the construction of section 346. The court found that the threat, while presumed to have been made with the intent to coerce, had not been shown to be unlawful, illegitimate or unconscionable. Thus, the appeal was dismissed as the findings of the primary judge were upheld.

The court also denied the appellant leave to advance a new case on appeal, which sought to depart from the case presented before the primary judge. The nature of conduct and intent required to establish coercion under section 348 was considered, but the court ruled against allowing the appellant to present a new case. Consequently, the appeal was dismissed, and the respondents were granted leave to apply for any costs orders within 14 days. The court did not consider making any costs order itself, leaving it to the respondents to pursue this within the specified timeframe.