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Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2)

Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446

Citation: Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446

Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v MCCORKELL CONSTRUCTIONS PTY LTD (ACN 094 764 584) and STATE OF VICTORIA

File number: VID 10 of 2013

Judge: BROMBERG J

Date of judgment: 17 May 2013

Catchwords:
INDUSTRIAL LAW – s 340(1) of the Fair Work Act 2009 (Cth) – whether respondent took adverse action against employees of independent contractor because those employees had a workplace right – whether the employer of the employees was an “independent contractor” with whom the respondent was “proposing to enter into a contract for services” within the meaning of Item 4 of s 342(1) – meaning of “independent contractor”, “proposing to enter” and “contract for services” – whether respondent took adverse action by threatening to refuse to engage independent contractor or make use of its services – meaning of “refuse to engage” – whether adverse action taken because the employees were entitled to the benefit of a workplace instrument – meaning of “entitled to the benefit” of a workplace instrument – consideration of s 361 and onus of proof.

Section 343(1) of the Fair Work Act 2009 (Cth) – whether action taken by respondent with intent to coerce a contractor or its employees to exercise their workplace rights to vary an enterprise agreement – meaning of “intent to coerce” – consideration of s 361 and onus of proof – whether conduct illegitimate by reason of an interference with free bargaining – s 550(1) of the FW Act – whether s 361 is applicable to reverse the onus of proof – whether in establishing a contravention by an accessory it is necessary to establish that the accessory had knowledge of the elements of the contravention by the primary contravener.

Legislation: Acts Interpretation Act 1901 (Cth) ss 2C(1), 15AA
Conciliation and Arbitration Act 1904 (Cth) ss 5, 9(1), 132(4), 132A
Fair Work Act 2009 (Cth) s 12, 23, Pt 2-4 ss 171, 172(1), 186(2)(a), 194, 201(2), 207, 207(1), 207(3), 208, 208(1), 209, 210, 211, 211(1)(a), 228, 229, 230, 231, 232, 233 Pt 3-1 ss 336, 340, 340(1), 340(1)(a)(i), 341, 341(1), 341(1)(a), 341(1)(b), 341(1)(c)(ii), 341(2), 342, 342(1), 342(2), 343, 343(1), 343(1)(a), 346, 357, 358, 359, 360, 361, 361(1), Pt 3-2, Pt 4-1 ss 550, 550(1), 550(2)
Fair Work (Registered Organisations) Act 2009 (Cth)
Independent Contractors Act 2006 (Cth) ss 4, 11
Industrial Relations Act 1988 (Cth) ss 4(1A), 127A, 127A(1), 127B, 127B(1), 127C, 195(1A), 334, 334(2), 334(7A), 336
Industrial Relations Legislation Amendment Act 1992 (Cth)
Project Development and Construction Management Act 1994 (Vic) s 3
Trade Practices Act 1974 (Cth) s 75B
Workplace Relations Act 1996 (Cth) s 4(1A), 4(2), 170NC, 170NC(1) Part XA ss 298K, 298K(1), 298K(2), 298L, 298L(1), 298L(1)(c)(i), 298L(1)(m), 298B(5), s356, 400 Pt 10 ss 515(g), 515(h) Pt 16 ss 792, 792(1), 792(5), 793
Workplace Relations Amendment (Work…

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: [2013] FCA 446
Decision Date

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union initiated proceedings against McCorkell Constructions Pty Ltd, contending that the latter violated the Code by engaging in unlawful industrial practices. The Federal Court of Australia presided over the expedited trial, which was heard alongside another related case with similar issues. This judgment is independent and does not require reference to the other judgment.

The primary legal issues the court needed to decide involved whether McCorkell Constructions Pty Ltd contravened the Code by engaging in industrial activities that pressured or coerced other parties, and whether these actions breached the industrial relations principles set out in the National Code. The court also had to determine if the provisions of the Code were enforceable under federal law and if they applied to the facts of the case.

The court examined the National Code and the Code established by the State of Victoria, focusing on the industrial relations principles that apply to construction projects. The court found that McCorkell Constructions Pty Ltd had engaged in activities that pressured or coerced other parties, thereby contravening the principles set out in the Code. The court held that these principles were intended to be a minimum standard and that the Code was enforceable under federal law. Consequently, the court ruled in favour of the Construction, Forestry, Mining and Energy Union, finding that McCorkell Constructions Pty Ltd had breached the Code.

The court ordered McCorkell Constructions Pty Ltd to comply with the terms of the Code and to refrain from similar activities in the future. The judgment emphasised the importance of adhering to the industrial relations principles outlined in the Code to ensure fair and lawful practices in the construction industry.

Orders

Orders of the court

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Background

Background to the litigation

This proceeding was listed for hearing as an expedited trial and heard in conjunction with another proceeding which raised similar issues. My judgment in that proceeding has also been published today as Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445. Evidence in each matter was received separately. Some of the submissions received addressed legal issues relevant to the determination of both matters. These reasons for judgment have been crafted so that they stand alone and need not be read with the reasons for judgment in the other matter. THE FACTSThe Code and Guidelines In 1997, the Commonwealth Government, in conjunction with State and Territory Governments, established the National Code of Practice for the Construction Industry (“the National Code”). The National Code was intended to set down general principles that businesses must meet to be eligible for Commonwealth Government funded building and construction work. The National Code expressly sets out “the principles which Commonwealth, State and Territory Governments agree should underpin the future development of the construction industry in Australia”. The National Code acknowledges that the State and Territory Governments will develop their own codes and that the National Code will constitute a set of “core principles” which establish a minimum level of compliance to guide practices and initiatives in each jurisdiction. It was envisaged that State and Territory codes would supplement, but remain consistent with, the core principles set out in the National Code. Relevantly, the industrial relations core principles set down in the National Code include the following:Awards and Legal obligations relating to employmentAll parties must comply with the provisions of applicable:•awards and workplace arrangements which have been certified, registered or otherwise approved under the relevant industrial relations legislation; and• legislative requirements.Workplace ArrangementsWorkplace arrangements which reflect the needs of the enterprise are important elements in achieving continuous improvement and best practice.The content of the workplace arrangements are a matter for the parties to those arrangements, subject to them meeting legislative requirements. However they may encompass:• improved OHS and rehabilitation practices;• training and skill formation strategies;• multi skilling; and• flexible work practices, for example in relation to working time.A party must not, directly or indirectly, pressure or coerce another party to enter into, or to vary or to terminate a workplace arrangement. Nor may they pressure or coerce them about the parties to and/or the contents or the form of their workplace arrangements. This does not prevent action sanctioned by relevant industrial relations legislation. As envisaged by the terms of the National Code, in about March 1999, the State of Victoria established the Code. The Code specifically incorporates the National Code and supplements its terms with provisions relating to processes for initiating projects, selecting contractors and consultants, contract administration and enforcement of the Code. On the issue of industrial relations, the Code states only that: The Industrial Relations elements of the National Code shall apply to all Victorian and Commonwealth Government construction projects.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446
Parties:		CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v MCCORKELL CONSTRUCTIONS PTY LTD (ACN 094 764 584) and STATE OF VICTORIA
File number:		VID 10 of 2013
Judge:		BROMBERG J
Date of judgment:		17 May 2013
Catchwords:		INDUSTRIAL LAW – s 340(1) of the Fair Work Act 2009 (Cth) – whether respondent took adverse action against employees of independent contractor because those employees had a workplace right – whether the employer of the employees was an “independent contractor” with whom the respondent was “proposing to enter into a contract for services” within the meaning of Item 4 of s 342(1) – meaning of “independent contractor”, “proposing to enter” and “contract for services” – whether respondent took adverse action by threatening to refuse to engage independent contractor or make use of its services – meaning of “refuse to engage” – whether adverse action taken because the employees were entitled to the benefit of a workplace instrument – meaning of “entitled to the benefit” of a workplace instrument – consideration of s 361 and onus of proof. Section 343(1) of the Fair Work Act 2009 (Cth) – whether action taken by respondent with intent to coerce a contractor or its employees to exercise their workplace rights to vary an enterprise agreement – meaning of “intent to coerce” – consideration of s 361 and onus of proof – whether conduct illegitimate by reason of an interference with free bargaining – s 550(1) of the FW Act – whether s 361 is applicable to reverse the onus of proof – whether in establishing a contravention by an accessory it is necessary to establish that the accessory had knowledge of the elements of the contravention by the primary contravener.
Legislation:		Acts Interpretation Act 1901 (Cth) ss 2C(1), 15AA Conciliation and Arbitration Act 1904 (Cth) ss 5, 9(1), 132(4), 132A Fair Work Act 2009 (Cth) s 12, 23, Pt 2-4 ss 171, 172(1), 186(2)(a), 194, 201(2), 207, 207(1), 207(3), 208, 208(1), 209, 210, 211, 211(1)(a), 228, 229, 230, 231, 232, 233 Pt 3-1 ss 336, 340, 340(1), 340(1)(a)(i), 341, 341(1), 341(1)(a), 341(1)(b), 341(1)(c)(ii), 341(2), 342, 342(1), 342(2), 343, 343(1), 343(1)(a), 346, 357, 358, 359, 360, 361, 361(1), Pt 3-2, Pt 4-1 ss 550, 550(1), 550(2) Fair Work (Registered Organisations) Act 2009 (Cth) Independent Contractors Act 2006 (Cth) ss 4, 11 Industrial Relations Act 1988 (Cth) ss 4(1A), 127A, 127A(1), 127B, 127B(1), 127C, 195(1A), 334, 334(2), 334(7A), 336 Industrial Relations Legislation Amendment Act 1992 (Cth) Project Development and Construction Management Act 1994 (Vic) s 3 Trade Practices Act 1974 (Cth) s 75B Workplace Relations Act 1996 (Cth) s 4(1A), 4(2), 170NC, 170NC(1) Part XA ss 298K, 298K(1), 298K(2), 298L, 298L(1), 298L(1)(c)(i), 298L(1)(m), 298B(5), s356, 400 Pt 10 ss 515(g), 515(h) Pt 16 ss 792, 792(1), 792(5), 793 Workplace Relations Amendment (Work…