Hamberger v Construction Forestry Mining and Energy Union - [2002] FCA 586

FEDERAL COURT OF AUSTRALIA
Hamberger v Construction Forestry Mining and Energy Union [2002] FCA 586
INDUSTRIAL LAW - Contravention of s 298S(2) of the Workplace Relations Act 1996 (Cth) - penalty - matters to be taken into account - amount of penalty - where need for deterrence.
Workplace Relations Act 1996 (Cth) s 170NF(1), s 298S(2)
Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Appl
Employment Advocate v National Union of Workers (2000) 99 IR 376 Dist
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
9 MAY 2002

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:

9 MAY 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT pursuant to s 170NF(1) of the Workplace Relations Act 1996 (Cth) :
1.A penalty of $5,000 be imposed on the second respondent for contravention of s 298S(2) of the Act on 4 March 1999.
2.A penalty of $750 be imposed on the fourth respondent for contravention of s 298S(2) of the Act on 4 March 1999.
3.Each of the penalties so imposed be paid into the Consolidated Revenue Fund.
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:

9 MAY 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT

These proceedings were initiated by the Employment Advocate under the provisions of the Workplace Relations Act 1996 (Cth) (“the Act”) in respect of alleged contraventions of Part XA of the Act.
On 22 December 2000, I ordered that the proceedings be dismissed against the first and third respondents and that they be adjourned to a date to be fixed to hear submissions as to penalty, if any, to be imposed against the second and the fourth respondents for contravention of s 298S(2) of the Act. Leave to appeal was granted by a Full Court of this court on 18 October 2001, but the appeals were dismissed: [2001] FCA 1443.
On 7 February 2002 submissions on penalty were heard in conjunction with submissions on penalty in Q43 of 1999.
Section 298S(2) of the Act provides :
“298S(2) An industrial association, or an officer or member of an industrial association, must not:
(a)advise, encourage or incite a…

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: [2002] FCA 586
Decision Date: 9 MAY 2002

CaseChat Overview and Summary

The matter before the Federal Court of Australia was an application by the Employment Advocate for the imposition of penalties against the Construction, Forestry, Mining and Energy Union (CFMEU), the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees (BLF), and two of its members and officers, Michael Ravbar and David Hanna. The applicants were found to have contravened section 298S(2) of the Workplace Relations Act 1996 (Cth) by threatening to take industrial action against non-union workers to coerce them to join a union. The legal issues involved the assessment of appropriate penalties under section 170NF(1) of the Act, considering factors such as the seriousness of the contravention, the need for deterrence, and the conduct of the respondents. The court found that the threats made by Hanna and Ravbar were deliberate and intended to intimidate the non-union workers, and that the second and fourth respondents had shown no contrition. Given the need to deter similar conduct in the future, the court imposed penalties of $5,000 on the BLF and $750 on Ravbar. Each penalty was ordered to be paid into the Consolidated Revenue Fund. The court's decision underscores the importance of protecting the right of workers to choose whether or not to join a union and highlights the consequences of contravening the Act's provisions.

Orders