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Hamberger v Construction, Forestry, Mining and Energy Union

Hamberger v Construction, Forestry, Mining and Energy Union

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Case Copied 9 May 2002 17 min read

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FEDERAL COURT OF AUSTRALIA
Hamberger v Construction Forestry Mining & Energy Union [2002] FCA 585
INDUSTRIAL LAW - Contravention of s 298P(3) and s 298K of the Workplace Relations Act 1996 (Cth) - penalty - matters to be taken into account - number of contraventions - whether one course of conduct - amount of penalty - where need for deterrence.
Workplace Relations Act 1996 (Cth) s 170NF(1), s 298K, s 298P(3)
Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Appl
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360 Appl
The Age Company Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2000] FCA 1757 Appl
Seven Network Operations Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 672 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, JAMIE
McHUGH, MICHAEL RAVBAR AND DARREL KERSEY
Q43 OF 1999
COOPER J
BRISBANE
9 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q43 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

JAMIE McHUGH
THIRD RESPONDENT

MICHAEL RAVBAR
FOURTH RESPONDENT

DARREL KERSEY
FIFTH 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 $7,500 be imposed on the first respondent for the contravention of s 298P(3)(a) and (b) of the Act on 29 January and 26 February, 1999.
2.A penalty of $7,500 be imposed on the second respondent for the contravention of s 298P(3)(a) and (b) of the Act on 29 January and 26 February, 1999.
3.A penalty of $1,500 be imposed on the third respondent for the contravention of s 298P(3)(a) and (b) of the Act on 29 January and 26 February, 1999.
4.A penalty of $750 be imposed on the fourth respondent for the contravention of s 298P(3)(a) and (b) of the Act on 29 January 1999.
5.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

Q43 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

JAMIE McHUGH
THIRD RESPONDENT

MICHAEL RAVBAR
FOURTH RESPONDENT

DARREL KERSEY
FIFTH RESPONDENT

JUDGE:

COOPER J

DATE:

9 MAY 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT

These proceedings were instituted by the Employment Advocate under…

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 585
Decision Date: 9 MAY 2002

CaseChat Overview and Summary

The case of Hamberger v Construction, Forestry, Mining and Energy Union was heard in the Federal Court of Australia, Queensland District Registry. The Employment Advocate, represented by Jonathan Hamberger, brought proceedings against the Construction, Forestry, Mining and Energy Union (CFME), the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees, and three individual respondents, Jamie McHugh, Michael Ravbar, and Darrel Kersey. The case revolved around the alleged contravention of sections 298P(3) and 298K of the Workplace Relations Act 1996 (Cth) by the respondents, involving attempts to coerce an employer to take action against an employee who refused to join an industrial association.

The primary legal issues before the court were the determination of the penalty to be imposed for the contraventions, whether the contraventions constituted one course of conduct, and the factors to consider when determining the appropriate penalty. The court had to balance the need for deterrence with the circumstances of the contraventions and the culpability of the respondents.

The court found that the conduct on both 29 January and 26 February 1999 should be seen as part of one course of conduct aimed at removing the employee from the site due to his refusal to join the union. The persistence of this conduct over time was considered an aggravating factor. The court highlighted the seriousness of the contraventions, which struck at the core principles of freedom of association in the Workplace Relations Act 1996 (Cth). The court concluded that the penalties imposed should be at the upper end of the range to act as a deterrent to similar conduct in the future. The penalties were calculated based on the number of contraventions, the seriousness of the conduct, and the need for deterrence. The court imposed a penalty of $7,500 on the CFME and the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees, $1,500 on McHugh, and $750 on Ravbar and Kersey for their involvement on 29 January 1999.

The final orders of the court were that a penalty of $7,500 be imposed on the first and second respondents, $1,500 on the third respondent, and $750 on the fourth respondent, all for contraventions on 29 January and 26 February 1999. Each penalty was to be paid into the Consolidated Revenue Fund.

Orders