Australian Building and Construction Commissioner v Rielly (No 2)

In *Australian Building and Construction Commissioner v Rielly (No 2)*, Driver J of the Federal Court of Australia considered allegations that Mr Rielly and Mr Fitzpatrick had made threats of organising or taking action against CPB. The Commissioner contended that Mr Rielly was aware that CPB had been awarded a contract for a project, including the supply of precast products by a yard, and that while CPB had a Union EBA for its main project site employees, it did not have one covering workers at the yard. Mr Rielly allegedly formed an intention to "organise" the yard, meaning to gain access to employees for the purpose of increasing Union membership and establishing a Union EBA.

The legal issues before the court included whether Mr Rielly's actions constituted threats of organising or taking action against CPB, and whether he had made specific demands to CPB managers. The Commissioner argued that Mr Rielly had told CPB representatives to ensure workers at the yard were members of the Union, that he would provide names of Union preferred sub-contractors, and that they should not engage Telum at the yard.

Driver J declined to entertain a "no case" submission at the trial stage, exercising judicial discretion due to Mr Rielly having filed an amended defence and the unfairness of compelling him to elect not to call evidence. The court noted that Mr Rielly had spoken to the yard workers and knew they were employees of Telum, which did not have a Union EBA. The Commissioner's submissions focused on evidence suggesting Mr Rielly's intent to organise the yard and his subsequent meeting with CPB managers where he allegedly made demands regarding Union membership, preferred sub-contractors, and the engagement of Telum. Mr Gray, a CPB representative, confirmed in cross-examination that Mr Rielly had mentioned having contractors he could recommend for the project.