Duffy v Construction, Forestry, Mining and Energy Union

FEDERAL COURT OF AUSTRALIA

Duffy v Construction, Forestry, Mining & Energy Union [2008] FCA 1804

INDUSTRIAL LAW – whether union engaged in unlawful industrial action within the meaning of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) - whether union imposed a ban on the performance of work at the construction site – whether the bans constituted a restriction on the performance of work in accordance with the relevant Award

INDUSTRIAL LAW – whether union threatened to take action against a construction company with intent to coerce the company to employ a building employee – whether there was a threat – whether there was intent to coerce – no negation of choice therefore no intent to coerce

Building and Construction Industry Improvement Act 2005 (Cth) ss 36(1), 38, 43(1)
Evidence Act 1995 (Cth) ss 63, 128

Cruse v Construction, Forestry, Mining & Energy Union [2008] FCA 1267, followed
Cahill v Construction, Forestry, Mining and Energy Union (No 2) [2008] FCA 1292, followed
 Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378, followed

TERRY DUFFY v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

VID 687 of 2007

MARSHALL J
28 NOVEMBER 2008
SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 687 of 2007

BETWEEN:	TERRY DUFFY Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	28 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is adjourned to a directions hearing to be held at 10.15 am on 19 December 2008.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 687 of 2007

BETWEEN:	TERRY DUFFY Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Respondent

JUDGE:	MARSHALL J
DATE:	28 NOVEMBER 2008
PLACE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

1. The applicant is an inspector employed by the Australian Building and Construction Commission (“ABCC”). He seeks the imposition of penalties upon the respondent Construction, Forestry, Mining and Energy Union for alleged contravention by it of the Building and Construction Industry Improvement Act 2005 (Cth) (“the Act”).

2. The applicant alleges that the Union breached s 38 of the Act, on 20 October 2005, by engaging in unlawful industrial action at a construction site in Plenty Road, Bundoora, known as the University Hill site.

3. The applicant further alleges that on 21 October and 24 October 2005 the Union breached s 43(1) of the Act by threatening to take action against a construction company, Vaughan Constructions Pty Ltd, with intent to coerce Vaughan to employ a person nominated by the Union as a building employee at the site.

4. The Union denies that it contravened the Act as alleged by the applicant.

   Work commences on the site

5. On 18 October 2005,…