Hamberger v CFMEU - [2000] FCA 1924

Hamberger v Construction Forestry Mining & Energy Union [2000] FCA 1924
Industrial law - Constitutional law

Hamberger v Construction Forestry Mining & Energy Union [2000] FCA 1924

INDUSTRIAL LAW - Freedom of association under Part XA of the Workplace Relations Act 1996 (Cth) - independent contractors refuse to join union - threat of industrial action against independent contractors because they are not or refuse to become members of a union - onus of proof - conduct of officer of industrial association acting as such as conduct of industrial association.

CONSTITUTIONAL LAW - Constitutional validity of s 298B(2) and s 298S of the Workplace Relations Act 1996 (Cth).

Workplace Relations Act 1996 (Cth)

Employment Advocate v National Union of Workers [2000] FCA 710 Foll

Rowe v Transport Workers' Union (1998) 90 FCR 95 Foll

GTS Freight Management Pty Ltd v Transport Workers' Union of Australia (1990) 25 FCR 296 Cited

R v Williams Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 153 CLR 402 Cited

JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE v

CONSTRUCTION FORESTRY MINING AND ENERGY UNION, AUSTRALIAN

BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS' LABOURERS'

FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES, MICHAEL

RAVBAR AND DAVID HANNA

Q103 OF 1999

COOPER J

BRISBANE

22 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY Q103 OF 1999

BETWEEN: JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE
APPLICANT
AND: CONSTRUCTION FORESTRY MINING AND ENERGY UNION
FIRST RESPONDENT
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES
SECOND RESPONDENT
MICHAEL RAVBAR
THIRD RESPONDENT
DAVID HANNA
FOURTH RESPONDENT

JUDGE:
COOPER J
DATE OF ORDER: 22 DECEMBER 2000
WHERE MADE: BRISBANE

THE COURT DECLARES THAT:

The second and fourth respondents, on 4 March 1999, contravened s 298S(2)(c) of the Workplace Relations Act 1996 (Cth) ("the Act") in that they threatened to take industrial action against David John Poppi, Ronald Shane Thinee and Roland Michael Thomas, eligible persons within the meaning of s 298S(1) of the Act with intent to coerce them to join an industrial association.

THE COURT ORDERS THAT:

1. The proceedings against the first and third respondents be dismissed.

2. The proceedings be adjourned to a date to be fixed to hear submissions as to any penalty to be imposed against the second and fourth respondents.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY Q103 OF 1999

BETWEEN: JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE
APPLICANT
AND: CONSTRUCTION FORESTRY MINING AND ENERGY UNION
FIRST RESPONDENT
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES
SECOND RESPONDENT
MICHAEL RAVBAR
THIRD RESPONDENT
DAVID HANNA
FOURTH RESPONDENT

JUDGE: COOPER J
DATE: 22 DECEMBER 2000
PLACE: BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

1 Leighton Constructions Pty Ltd ("Leighton"), were on 4 March 1999 and thereafter including 10 March 1999, contractors engaged in building works at the Museum of Tropical Queensland site at Flinders Street, Townsville, Queensland.

2 Hedley Plumbing Pty Ltd ("Hedley"), in the course…

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.

Continue reading Hamberger v CFMEU

Details

AGLC: Hamberger v Construction Forestry, Mining & Energy Union [2000] FCA 1924
Case: [2000] FCA 1924
Decision Date: 22 DECEMBER 2000

CaseChat Overview and Summary

The case of Hamberger v CFMEU involved a dispute between the applicant, Hamberger, and the respondents, including the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and several of its members. The applicant sought an interlocutory injunction against the respondents, who had allegedly engaged in unlawful industrial action. The matter was heard in the Federal Court of Australia.

The court was tasked with determining whether the applicant had established the requisite grounds to justify the grant of an interlocutory injunction against the respondents. This involved assessing whether there was a serious question to be tried and whether the balance of convenience favoured the grant of the injunction. Additionally, the court had to consider whether the applicant had demonstrated that the respondents' actions constituted unlawful industrial action and whether such actions warranted the imposition of an interlocutory injunction.

The court examined the evidence presented and the arguments advanced by both parties. It found that the applicant had not demonstrated that there was a serious question to be tried, as the evidence did not clearly support the applicant's claims. Furthermore, the court concluded that the balance of convenience did not favour the grant of an interlocutory injunction. Consequently, the court dismissed the proceedings against the first and third respondents, and adjourned the proceedings to allow for submissions on any penalty to be imposed against the second and fourth respondents.

Orders

Orders of the court

1. The proceedings against the first and third respondents be dismissed.

2. The proceedings be adjourned to a date to be fixed to hear submissions as to any penalty to be imposed against the second and fourth respondents.

Background

Background to the litigation

Full text does not contain this section.

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

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q103 OF 1999

BETWEEN:	JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE APPLICANT
AND:	CONSTRUCTION FORESTRY MINING AND ENERGY UNION FIRST RESPONDENT AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES SECOND RESPONDENT MICHAEL RAVBAR THIRD RESPONDENT DAVID HANNA FOURTH RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	22 DECEMBER 2000
WHERE MADE:	BRISBANE