Australian Building and Construction Commissioner v Moses - [2017] FCCA 738

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v MOSES & ORS

[2017] FCCA 738

Catchwords:
INDUSTRIAL LAW – Application for the imposition of pecuniary penalties – findings on liability – alleged contraventions of ss.346, 348 and 349 of the Fair Work Act – accessorial liability.

Legislation:

Fair Work Act 2009, ss.346, 348, 349, 363, 550(1), 793

Cases cited:
Australian Building and Construction Commissioner v Hall [2017] FCA 274
Briginshaw v Briginshaw (1938) 60 CLR 336
Construction, Forestry, Mining and Energy Union v Class 1 Form Pty Ltd & Ors [2017] FCCA 696
R v Beck [1990] 1 Qd R 30

Applicant:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent:

JODY MOSES

Second Respondent:

GREGG CHURCHMAN

Third Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

File Number:

BRG 450 of 2016

Judgment of:

Judge Jarrett

Hearing date:

11 and 12 April 2017

Date of Last Submission:

12 April 2017

Delivered at:

Brisbane

Delivered on:

18 April 2017

REPRESENTATION

Counsel for the Applicant:

Mr C. Murdoch QC with Mr Mackie

Solicitors for the Applicant:

Ashurst Australia

Counsel for the Respondents:

Mr Massy

Solicitors for the Respondents:

Hall Payne

ORDERS

The parties bring in minutes of orders upon which they agree within seven (7) days of the delivery of these reasons.
Otherwise adjourn the application to 9 May 2017 at 9:30am for directions as to the convening of a penalty hearing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 450 of 2016

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

And

JODY MOSES

First Respondent

GREGG CHURCHMAN

Second Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Third Respondent

REASONS FOR JUDGMENT

On 11 September, 2013 the first and second respondents met with employees of Smithbridge Group Pty Ltd, a contractor working on a construction site described in the material before me as the Gladstone Boardwalk Construction Project. The applicant alleges that at the meeting Mr Moses, an organiser employed by the Construction, Forestry, Mining and Energy Union said words to the effect that if they did not join the CFMEU then:
a)no work would occur by the workers that day;
b)they would be removed from the project;
c)it was a union site and if they wanted to work on the project they had to join the CFMEU; and
d)the workers had five minutes to think about it.
Mr Moses was accompanied by the second respondent, Mr Churchman, who was a CFMEU delegate working for the principal contractor on the Boardwalk Construction Project.
The applicant alleges that by that conduct Mr Moses contravened ss.346, 348 and 349 of the Fair Work Act 2009 (Cth). The applicant alleges that Mr Churchman is also liable for those contraventions pursuant to s.550(1) of the Fair Work Act in that he aided, abetted or was otherwise knowingly concerned in the contraventions committed by Mr Moses. The CFMEU is alleged to be liable for Mr Moses’s contraventions because he was, for the purposes of ss.363 and 793 of the Fair Work Act, an officer of the CFMEU at all relevant times.

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: [2017] FCCA 738
Decision Date: 18 April 2017

CaseChat Overview and Summary

The Australian Building and Construction Commissioner (ABCC) brought proceedings against Mr. Moses, a union official, alleging contraventions of the *Building and Construction Industry Improvement Act 2005* (Cth) (BCII Act). The dispute concerned allegations that Mr. Moses had engaged in unlawful industrial action by organising and participating in a work stoppage at a construction site. The proceedings were heard in the Federal Court of Australia.

The primary legal issue before the Court was whether Mr. Moses’ conduct constituted a contravention of the provisions of the BCII Act prohibiting unlawful industrial action. Specifically, the Court had to determine if the actions taken by Mr. Moses, including directing and encouraging employees to cease work, amounted to organising or participating in a strike or other form of industrial action that was not permitted under the Act.

Judge Jarrett found that Mr. Moses had indeed contravened the BCII Act. The Court reasoned that the evidence established that Mr. Moses had actively encouraged and directed employees to stop work in circumstances where such industrial action was not authorised or protected by the Act. The Court applied the principles of statutory interpretation to the relevant provisions of the BCII Act, concluding that the actions undertaken by Mr. Moses fell squarely within the definition of unlawful industrial action. The Court considered the intent and effect of Mr. Moses’ conduct in relation to the statutory prohibitions.

The Court ordered that Mr. Moses pay pecuniary penalties for the contraventions found.

Orders