FEDERAL COURT OF AUSTRALIA
Australian Workers’ Union v CBI Constructors Pty Ltd [2016] FCA 745
File number: VID 261 of 2014 Judge: JESSUP J Date of judgment: 24 June 2016 Catchwords: INDUSTRIAL LAW – adverse action – where employment request refused by contractor for multiple reasons, including alleged prior involvement in industrial activity – consideration of phrase “refuse to employ” – whether circumstances fell within justified refusal by reason of “commercial duress” by principal company – compensation claim judged by counterfactual – pecuniary penalty order Legislation: Fair Work Act 2009 (Cth) ss 342, 346, 347, 545, 546
Workplace Relations Act 1996 (Cth) s 298L
Cases cited: Australian Workers’ Union v John Holland Pty Ltd (2001) 103 IR 205
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150
Fraser v Fletcher Construction Australia Ltd
(1996) 70 IR 117Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4
Shannon v Transfield Worley (2001) 113 FCR 53
Date of hearing: 26-28 April 2016 Date of last submissions: 18 May 2016 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 87 Counsel for the Applicants: Mr J Fetter Solicitor for the Applicants: Ms L Aksu of Australian Workers’ Union Counsel for the First Respondent: The first respondent did not appear Counsel for the Second Respondent: Mr C O’Grady QC Solicitor for the Second Respondent: Herbert Smith Freehills ORDERS
VID 261 of 2014 BETWEEN: AUSTRALIAN WORKERS’ UNION
First Applicant
TERRENCE JOHN LEE
Second Applicant
AND: CBI CONSTRUCTORS PTY LTD
First Respondent
WOOD GROUP PSN AUSTRALIA PTY LTD
Second Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
24 JUNE 2016
THE COURT ORDERS THAT:
1.The second respondent pay a penalty of $17,500 for its contravention of s 346 of the Fair Work Act 2009 (Cth) in November 2013 constituted by its refusal to employ the second applicant for reasons which included the reason that he had been an officer of the first applicant and, in that capacity, had represented and advanced the views, claims and interests of the first applicant.
2.The said penalty be paid to the first applicant.
3.Otherwise, the Application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JESSUP J:
In this proceeding the applicants, The Australian Workers’ Union, (“the Union”) and Terrence Lee allege that the second respondent, Wood Group PSN Australia Pty Ltd (“WGPSN”) refused to employ, and threatened to refuse to employ, Mr Lee because he had been an officer of the Union and had engaged in industrial activity, in contravention of s 346(a) and (b) of the Fair Work Act 2009 (Cth)…
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- Case
- [2016] FCA 745
- Decision Date
CaseChat Overview and Summary
The court had to consider several legal issues, including whether the phrase "refuse to employ" in the Fair Work Act included situations where an employer refused to employ someone for reasons connected to their union activities, and whether the employer's justification for refusing employment, such as commercial duress by a principal company, could legally override these protections. The court also had to determine if the compensation claim could be judged by a counterfactual approach and if so, what that might entail.
In delivering the judgment, the court held that the refusal to employ the individual was unlawful as it included reasons related to his union activities, which are protected under the Act. The court found that the employer's justification based on commercial duress was not sufficient to legally override the protections afforded to union officers. The court also accepted that the compensation claim could be assessed using a counterfactual approach, which in this case meant calculating the financial loss the individual would not have suffered but for the employer's actions. The court ordered CBI to pay a pecuniary penalty for its contravention of the Act.
The court ordered that the second respondent, CBI, pay a penalty of $17,500 for its contravention of section 346 of the Fair Work Act 2009, to be paid to the first applicant, the AWU. The court dismissed the application in all other respects. This decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The second respondent pay a penalty of $17,500 for its contravention of s 346 of the Fair Work Act 2009 (Cth) in November 2013 constituted by its refusal to employ the second applicant for reasons which included the reason that he had been an officer of the first applicant and, in that capacity, had represented and advanced the views, claims and interests of the first applicant.
2. The said penalty be paid to the first applicant.
3. Otherwise, the Application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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