Australian Building and Construction Commissioner v Parker [2017] FCA 564
File number:
NSD 467 of 2016
Judge:
FLICK J
Date of judgment:
24 May 2017
Catchwords:
INDUSTRIAL LAW – coercion – taking of action against another person – intent to coerce – need for an intent to negate choice – need for a high degree of compulsion
INDUSTRIAL LAW – intention – onus to establish affirmatively that action was not actuated by the reason alleged
INDUSTRIAL LAW – the taking of industrial action
INDUSTRIAL LAW – breach of enterprise agreement
INDUSTRIAL LAW – accessorial liability – knowledge of essential matters which make up offence
INDUSTRIAL LAW – breach of civil penalty provisions
PRACTICE AND PROCEDURE – stay of proceeding pending resolution of criminal proceedings – stay refused – alleged contraventions “not substantially the same”
PRACTICE AND PROCEDURE – Briginshaw standard – need to consider gravity of matters alleged
PRACTICE AND PROCEDURE – withdrawal of an admission in defence – leave granted
[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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AGLC
Australian Building and Construction Commissioner v Parker [2017] FCA 564
Case
[2017] FCA 564
Decision Date
CaseChat Overview and Summary
In the case of Australian Building and Construction Commissioner v Parker, the Commissioner brought proceedings against various respondents, including individuals and unions, for alleged breaches of the Fair Work Act and enterprise agreements. The primary issues before the court were whether the respondents had engaged in conduct that constituted coercion and whether they were liable for breaches of the Fair Work Act and the enterprise agreements. The court had to determine the intent behind the actions taken, the applicability of accessorial liability, and the appropriate standard of proof required for such quasi-criminal matters.
The court found that the gravity of the allegations necessitated a high degree of proof, aligning with the quasi-criminal nature of the offences. The court emphasised the importance of clear and direct evidence to establish the alleged contraventions. It was held that the onus was on the Commissioner to affirmatively prove that the actions were not motivated by the reasons claimed by the respondents. The court also addressed the withdrawal of an admission in defence, granting leave for the respondent to withdraw their admission, and considered whether the alleged contraventions were substantially the same as those in pending criminal proceedings, ultimately refusing a stay of the proceedings.
The court concluded that many of the serious allegations made by the Commissioner had been substantiated, leading to findings of liability against the unions and individuals involved. The court directed that orders be made to give effect to these findings and scheduled a hearing to determine the form of relief to be granted. The court ordered that the parties were to bring in Short Minutes of Orders within fourteen days to formalise the findings and relief.
Orders
Orders of the court
1. The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The Respondents filed evidence from the following persons, namely: ·Mr Brian Parker;·Mr Rob Kera;·Mr Danny Reeves;·Mr Pete Genovese;·Mr Michael Greenfield;·Mr Luke Collier;·Mr Darren Greenfield;·Mr Anthony Sloane;·Mr Darren Taylor; and·Mr Richard Auimatagi.Preliminary matters of evidence Four preliminary matters should be expressly addressed with respect to the evidence. First, when making the findings of fact, due regard must be had to the gravity of the matters alleged: Evidence Act, s 140(2). Section 140 provides as follows:Civil proceedings – standard of proof (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.The contraventions alleged by the Commissioner have to take into account the fact that they are contraventions of civil remedy provisions of the Fair Work Act. They are, accordingly, properly to be regarded as “quasi-criminal”: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294 at [53], (2002) ATPR ¶41-901 at 45,414 per Goldberg J; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291 at [68] to [69], (2013) 239 IR 363 at 388 to 389 per Collier J. The standard of proof referred to in s 140(2) is a re-statement of the standard of proof referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336: Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770 at [15], (2010) 188 FCR 221 at 225 per Logan J. When commenting upon the evidence required in a petition for divorce on the ground of adultery under the Marriage Act 1928 (Vic), Dixon J in Briginshaw observed (at 362): .… But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.See also: (1938) 60 CLR at 347 per Latham CJ. See also: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 at [29] to [32], (2007) 162 FCR 466 at 479 to 480 per Weinberg, Bennett and Rares JJ; Darlaston v Parker [2010] FCA 771 at [17], (2010) 189 FCR 1 at 6 to 7 per Flick J.
Decision
Reasons for decision
To the extent that the allegations against each of the individual Respondents has prevailed, it is concluded that:·in engaging in the conduct that they each pursued, each was acting in their capacity as an officer, employee or agent of both the CFMEU and the CFMEU NSW;·the conduct thereby engaged in is to be taken for the purposes of the Fair Work Act to have been engaged in by the CFMEU and the CFMEU NSW; and·the CFMEU and the CFMEU NSW thereby contravened those provisions of the Fair Work Act which have been contravened by the failure to engage in the dispute resolution provision and breached cl 20 of the Agreement.Finding liability to have been made out as against both the CFMEU and the CFMEU NSW is not to preclude submissions later being entertained as to the form of any potential declaratory or other relief. CONCLUSIONS Many of the serious allegations made by the Commissioner have been made out. Other allegations have failed. The steps to be now taken include:·the making of orders to give effect to the findings made; and·setting the matter down for a hearing as to the relief to be granted.These are steps which should be taken forthwith.THE ORDER OF THE COURT IS:The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.