Hamberger v Construction Forestry, Mining & Energy Union - [2000] FCA 1923

Hamberger v Construction Forestry, Mining & Energy Union [2000] FCA 1923
Industrial law - Constitutional law
(includes corrigenda dated 24 January 2001)

Hamberger v Construction Forestry, Mining & Energy Union [2000] FCA 1923

INDUSTRIAL LAW - Freedom of association under Part XA of the Workplace Relations Act 1996 (Cth) - employee declines to join union - conduct by officers of union - seeking removal of employee from site - injury of employee in his or her employment - to alter position of an employee to the employee's prejudice.

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

WORDS AND PHRASES - "advise, encourage or incite".

Workplace Relations Act 1996 (Cth)

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

Bennett v Milliner (1959) 1 FLR 312 Cited

Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 Cited

Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 Cited

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

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

22 DECEMBER 2000

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: 22 DECEMBER 2000
WHERE MADE: BRISBANE

THE COURT DECLARES THAT:

1. The first, second, third and fourth respondents have engaged in conduct in contravention of s 298P(3) of the Workplace Relations Act 1996 (Cth) on 29 January 1999.

2. The first, second and third respondents have engaged in conduct in contravention of s 298P(3) of the Workplace Relations Act 1996 (Cth) on 26 February 1999.

THE COURT ORDERS THAT :

3. The proceedings be dismissed against the fifth respondent.

4. The proceedings be adjourned to a date to be fixed to hear submissions as to any penalty to be imposed against the first, second, third 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 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: 22 DECEMBER 2000
PLACE: BRISBANE

REASONS FOR JUDGMENT

1 The applicant is the Employment Advocate ("the Advocate"), an office created under s 83BA of the Workplace Relations Act 1996 (Cth) ("the Act").

2 The first respondent…

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 Construction Forestry, Mining & Energy Union

Details

AGLC: Hamberger v Construction Forestry, Mining & Energy Union [2000] FCA 1923
Case: [2000] FCA 1923
Decision Date: 22-December-2000

CaseChat Overview and Summary

The case involved the Employment Advocate bringing proceedings against the Construction Forestry, Mining and Energy Union (CFMEU), the Australian Building Construction Employees and Builders' Labourers' Federation (QLD Branch) Union of Employees, and three union officials, McHugh, Ravbar, and Kersey. The Employment Advocate alleged that the respondents engaged in conduct in contravention of section 298P(3) of the Workplace Relations Act 1996 (Cth). The alleged conduct involved threatening industrial action against Lillicorp and Candid Hire with the intent to coerce them to remove Leroy from the construction site because he was not a member of the BLF and/or CFMEU and refused to join the unions. The court found that the conduct on 29 January 1999 and 26 February 1999 constituted a contravention of section 298P(3) of the Act. The court declared that the first, second, third, and fourth respondents engaged in conduct in contravention of section 298P(3) on 29 January 1999, and the first, second, and third respondents engaged in conduct in contravention of section 298P(3) on 26 February 1999. The proceedings were dismissed against the fifth respondent. The court ordered that the matter be adjourned to a date to be fixed to hear submissions as to any penalty to be imposed against the first, second, third, and fourth respondents.

Orders