Australian Building and Construction Commissioner v Ravbar

In the case of Australian Building and Construction Commissioner v Ravbar, the Fair Work Ombudsman sought declarations that employees of the Construction, Forestry, Mining and Energy Union (CFMEU) contravened sections 340, 343, and 354 of the Fair Work Act 2009 (Cth). The dispute arose from allegations that the employees had given directions and taken actions to coerce a company into signing a CFMEU model enterprise agreement, which constituted adverse action and discrimination. The primary legal issues involved determining whether the alleged directions were given and actions taken, the applicable standard of proof, the principles on drawing inferences, and the definitions of adverse action, intent to coerce, and discrimination under the Act. Additionally, the court had to consider whether some employees were liable for the actions of others and whether the CFMEU was liable for its employees' actions.

The court held that one set of contraventions was established. The Commissioner's evidence established that Mr Ravbar gave the third Port Connect direction, and Mr Sutherland took actions during the third Port Connect incident. Given the onus placed on Mr Ravbar and Mr Sutherland by section 361 of the Fair Work Act to show that they did not act for proscribed reasons, and considering that Mr Sutherland did not provide evidence, the court found that both had contravened section 340 of the Act. The court also determined that Universal Cranes suffered a real and substantial alteration to its position as a result of the incident, satisfying the requirement of prejudice under section 342 of the Act.

The court's reasoning led to the conclusion that Mr Ravbar and Mr Sutherland contravened section 340 of the Fair Work Act. This finding was based on the established facts that the third Port Connect direction was given and the actions were taken, the failure of Mr Ravbar and Mr Sutherland to discharge the onus of proof, and the evidence of prejudice to Universal Cranes. Consequently, the court found that both Mr Ravbar and Mr Sutherland had contravened section 340 of the Fair Work Act.

ORDERS:
The parties were directed to prepare an appropriate form of orders to give effect to the court's reasons, with entry of orders governed by Rule 39.32 of the Federal Court Rules 2011.