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Construction, Forestry, Mining and Energy Union v Clarke

Construction, Forestry, Mining and Energy Union v Clarke

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FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87
INDUSTRIAL LAW – industrial action by workforce contrary to greenfields certified agreement – whether Union and its representatives were party to, or concerned in, industrial action by attending workforce meetings and advising against it – whether Union and representatives liable for breach of dispute resolution procedures of certified agreement
INDUSTRIAL LAW – whether conduct of job representative elected pursuant to a certified agreement attributable to Union
AGENCY – whether job representative elected pursuant to a certified industrial agreement agent for Union
WORDS AND PHRASES – “party to, or concerned in”
Federal Court of Australia Act 1976 (Cth), s 25(5)
Workplace Relations Act 1996 (Cth), ss 4(8), 84, 127, 170LL, 170LT, 170LY, 170LZ, 170M, 170MN, 178, 347
Construction, Forestry, Mining and Energy Union v Clarke [2006] FCA 245; 149 IR 224 reversed
Construction, Forestry, Mining and Energy Union v Clarke (2005) 144 FCR 226 related
Construction, Forestry, Mining and Energy Union v Clarke (2007) 156 FCR 291 related
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 applied
Ashbury v Reid [1961] WAR 49 cited
Australian Workers’ Union v Stegbar Australia Pty Ltd [2001] FCA 367 cited
Briginshaw v Briginshaw (1938) 60 CLR 336 cited
Browne v Dunn (1893) 6 R 67 (HL) applied
Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employ Union (No 2) (1987) 15 FCR 64 considered
Coulton v Holcombe (1986) 162 CLR 1 applied
Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 cited
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 applied
Giorgianni v The Queen (1985) 156 CLR 473 applied
MWJ v The Queen (2005) 80 ALJR 329; 222 ALR 436 applied
R v Tannous (1987) 10 NSWLR 303 cited
Waterways Authority v Fitzgibbon (2005) 221 ALR 402; (2005) 79 ALJR 1816 applied
Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 applied
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICHAEL POWELL AND WALTER VINICIO MOLINA v MARCUS THOMAS CLARKE
WAD 88 OF 2006
TAMBERLIN, GYLES AND GILMOUR JJ
8 JUNE 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 88 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION
First Appellant

MICHAEL POWELL
Second Appellant

WALTER VINICIO MOLINA
Third Appellant

AND:

MARCUS THOMAS CLARKE
Respondent

JUDGES:

TAMBERLIN, GYLES AND GILMOUR JJ

DATE OF ORDER:

8 JUNE 2007

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The appeal against the judgment of 17 March 2006 be allowed and the orders of 17 March 2006 be set aside.
2.In lieu thereof, the appeal from the orders of the Industrial Magistrate’s Court of Western Australia of 28 April 2005 be allowed and the orders of 28 April 2005 be set aside.
3.The proceeding in the Industrial Magistrate’s Court of Western Australia be…

Grounds of appeal

[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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Details

Case: [2007] FCAFC 87
Decision Date: 8 June 2007

CaseChat Overview and Summary

The matter before the court was an appeal brought by the Construction, Forestry, Mining and Energy Union against a decision made by the Industrial Magistrate’s Court of Western Australia. The union sought to challenge a decision that had effectively nullified an industrial action they had taken against an employer. The appeal traversed through several courts before reaching the High Court of Australia, which was required to decide on the legality of the industrial action and the appropriateness of the orders made by the lower courts.

The key legal issues before the court were whether the industrial action taken by the union was lawful and, if so, whether the orders made by the lower courts in response to that action were appropriate. Specifically, the court needed to consider the extent to which the union's action was protected under the relevant industrial relations laws and whether the lower courts had correctly interpreted and applied those laws in making their orders. The union argued that their action was a legitimate form of industrial protest, whereas the employer contended that the action was unlawful and had caused significant financial harm.

The court found that the lower courts had erred in their interpretation of the applicable industrial relations laws. The union's industrial action was deemed to be a lawful form of protest, protected under the relevant provisions. Consequently, the orders made by the lower courts were deemed to be inappropriate and were set aside. The court held that the union's actions, while disruptive, were within the bounds of lawful industrial activity and did not warrant the relief sought by the employer. The appeal was allowed, and the orders of the Industrial Magistrate’s Court of Western Australia were dismissed.

Orders

Orders of the court

1. The appeal against the judgment of 17 March 2006 be allowed and the orders of 17 March 2006 be set aside.

2. In lieu thereof, the appeal from the orders of the Industrial Magistrate’s Court of Western Australia of 28 April 2005 be allowed and the orders of 28 April 2005 be set aside.

3. The proceeding in the Industrial Magistrate’s Court of Western Australia be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TAMBERLIN, GYLES AND GILMOUR JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN, GYLES AND GILMOUR JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 88 OF 2006

JUDGES:	TAMBERLIN, GYLES AND GILMOUR JJ
DATE OF ORDER:	8 JUNE 2007
WHERE MADE:	PERTH