GREGOR v CFMEU

Case [2011] FMCA 562

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GREGOR v CFMEU & ANOR [2011] FMCA 562
INDUSTRIAL LAW – Penalty hearing – contraventions of s.767(1) of the Workplace Relations Act 1996 (Cth) by respondents – contraventions admitted – agreed penalties – whether agreed penalties within permissible range.
Workplace Relations Act 1996, ss.760, 767
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560
John Holland Pty Ltd v CFMEU & Ors [2009] FMCA 1248
Michelle White v Construction Forestry Mining and Energy Union [2011] FCA 192
Applicant: MURRAY GREGOR
First Respondent: CFMEU
Second Respondent: MARK TRAVERS
File Number: MLG 1634 of 2009
Judgment of: Riethmuller FM
Hearing date: 5 October 2010
Date of Last Submission: 9 November 2010
Delivered at: Melbourne
Delivered on: 22 July 2011

REPRESENTATION

Counsel for the Applicant: Mr Snaden of Counsel
Solicitors for the Applicant: Tim Honey
Counsel for the Respondents: No appearance
Solicitors for the Respondents: CFMEU - Legal Branch

ORDERS

  1. A penalty of $5,000 be imposed on the First Respondent for contravening section 767(1) of the Workplace Relations Act 1996 by its vicarious liability for the conduct of the second respondent for acting in an improper manner whilst exercising a right conferred upon him by s.760 of the WR Act.

  2. A penalty of $1,000 be imposed on the Second Respondent for contravening section 767(1) of the Workplace Relations Act 1996 by his conduct in acting in an improper manner whilst exercising a right conferred upon him by s.760 of the WR Act.

  3. The penalty amounts be payable within 28 days.

  4. There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1634 of 2009

MURRAY GREGOR

Applicant

And

CFMEU

First Respondent

MARK TRAVERS

Second Respondent

REASONS FOR JUDGMENT

  1. These proceedings were issued on 16 December 2009 seeking orders imposing pecuniary penalties on the first respondent, the Construction, Forestry, Mining and Energy Union (‘CFMEU’), and the second respondent who is an employee of the CFMEU for contravention of s.767(1) of the Workplace Relations Act 1996 (‘the WR Act’).

  2. The applicant is an Australian Building and Construction (ABC) Inspector appointed under s.57 of the BCII Act and is a person eligible to bring the proceedings for contravention of the civil penalty provisions.

  3. The facts are that the second respondent breached s.767(1) of the Act on 24 February 2009 at the Melbourne Airport Tullamarine construction project (‘the site’) by entering onto the site, without authorisation, for a stop work meeting with workers on the site. The second respondent then refused to leave, despite repeated requests by management to do so, and swore at management. The total duration of the breach appears to have been of approximately 25 minutes.

  4. The matter first came before me last year, early in the year, where it was directed to mediation.  It did not settle at mediation and was set for a penalty hearing on 20 October 2010.…

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Details
AGLC
GREGOR v CFMEU [2011] FMCA 562
Case
[2011] FMCA 562
Decision Date

CaseChat Overview and Summary

The case of Gregor v CFMEU involves Gregor, an employee, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), a trade union. The dispute arose due to the actions of an employee of the union who exercised his rights under section 760 of the Workplace Relations Act 1996 in an improper manner. The matter was brought before the Federal Circuit Court of Australia to determine the liability of both the union and its employee for contravening section 767(1) of the Act.

The central legal issues the court needed to address were whether the union was vicariously liable for the actions of its employee, and whether the employee himself was liable for acting in an improper manner while exercising his rights. The court needed to interpret and apply the relevant sections of the Workplace Relations Act 1996, specifically section 760 and section 767(1), to determine the nature and extent of the contraventions. Additionally, the court had to consider the appropriate penalties for the contraventions under the Act.

The court found that the union was indeed vicariously liable for the actions of its employee, as he was acting within the scope of his employment when he exercised his rights improperly. The court imposed a penalty of $5,000 on the union for this contravention. The court also held the employee personally liable for his actions, imposing a penalty of $1,000. The court emphasised the importance of maintaining proper conduct when exercising rights under the Act and the potential consequences for improper behaviour. The penalties were set to be paid within 28 days, and no order was made regarding costs.

Orders

Orders of the court

1.

A penalty of $5,000 be imposed on the First Respondent for contravening section 767(1) of the Workplace Relations Act 1996 by its vicarious liability for the conduct of the second respondent for acting in an improper manner whilst exercising a right conferred upon him by s.760 of the WR Act.

2.

A penalty of $1,000 be imposed on the Second Respondent for contravening section 767(1) of the Workplace Relations Act 1996 by his conduct in acting in an improper manner whilst exercising a right conferred upon him by s.760 of the WR Act.

3.

The penalty amounts be payable within 28 days.

4.

There be no order as to costs.

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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