Australian Building & Construction Commissioner v Molina (No 2)

The Federal Court of Australia was presented with a case involving civil penalty proceedings under the Fair Work Act 2009 (Cth), focusing on whether adverse action and coercion had occurred. The dispute involved Mr Molina, an employee of the Australian Building & Construction Commissioner, and Mr Buckie, a representative of Civmec, a construction company. Mr Molina had alleged that Mr McLaughlin, another representative of Civmec, made coercive comments that amounted to adverse action and coercion against workers at a construction site.

The primary legal issues for the court to resolve were whether Mr McLaughlin's comments constituted adverse action under section 346(b) of the Fair Work Act and whether they amounted to coercion under section 348. Specifically, the court needed to determine if Mr McLaughlin's statements were intended to negate the employer's choice that workers stay on the operating site and if they prejudiced the workers. The court also had to assess the content and meaning of Mr McLaughlin's threat, particularly in relation to the use of the term "picket line."

The court examined the testimonies and evidence provided by the parties. Mr Molina claimed that Mr McLaughlin's comments about the site being operational for those who wished to remain amounted to coercion, but the court found that Mr McLaughlin's statements did not include any such conditional language. Instead, Mr McLaughlin simply stated that the site was operational. The court found that Mr Molina, along with other representatives, had encouraged the workers to walk off the site, suggesting a coordinated effort to instigate a walk-off. Mr Molina's interpretation of "picket line" as a peaceful protest was also considered, but the court determined that the context of the site and the workers' immediate response to leave the site indicated a more significant intent behind the coercive language used.

The court concluded that Mr McLaughlin's comments did not constitute adverse action or coercion as defined under the Fair Work Act. The evidence showed that Mr Buckie did not consider the comments to be serious enough to warrant a response and did not perceive any prejudice. The court found that Mr Molina's actions and the context in which the comments were made did not support a finding of coercion.

The court dismissed the application, ordered Mr Molina to pay the respondents' costs, and granted him liberty to apply within seven days for the costs order to be set aside or varied.