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Hardwick v Australian Manufacturing Workers' Union

Hardwick v Australian Manufacturing Workers' Union

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FEDERAL COURT OF AUSTRALIA
Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818

Citation: Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818

Parties: SHAUN HARDWICK v AUSTRALIAN MANUFACTURING WORKERS' UNION, AUSTRALIAN WORKERS' UNION, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, GREG WARREN, TERRY LEE, PETER MOONEY and JOHN PARKER

File number: VID 831 of 2009

Judge: GORDON J

Date of judgment: 4 August 2010

Catchwords: INDUSTRIAL LAW – pecuniary penalties for contravention of the s 44 of the Building and Construction Industry Improvement Act 2005 (Cth) – respondents engaged in conduct with intent to coerce sub-contractors to enter into union building agreements – where penalties agreed between the parties – whether penalties within permissible range

Legislation: Building and Construction Industry Improvement Act 2005 (Cth)
Workplace Relations Act 1996 (Cth)

Cases cited: Cruse v Multiplex Ltd (2008) 172 FCR 279
Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR ¶41-993
Pine v Expoconti Pty Ltd (2005) 147 IR 426
Ponzio v B & P Caelli Constructions Pty Ltd & Others (2006) 157 IR 80
Ponzio v B & P Caelli Constructions Pty Ltd & Others (2007) 158 FCR 543
Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61
Veen v R (No 2) (1988) 164 CLR 465
Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754

Date of hearing: On the papers

Date of last submissions: 15 July 2010

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 30

Counsel for the Applicant: JL Bourke

Solicitor for the Applicant: Blake Dawson

Solicitor for the First, Second, Fifth and Sixth Respondents: Maurice Blackburn Lawyers

Solicitor for the Third and Seventh Respondents: Electrical Trades Union

Solicitor for the Fourth and Eighth Respondents: Construction, Forestry, Mining and Energy Union

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 831 of 2009

BETWEEN:
SHAUN HARDWICK
Applicant

AND:
AUSTRALIAN MANUFACTURING WORKERS' UNION
First Respondent

AUSTRALIAN WORKERS' UNION
Second Respondent

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION
Third Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Fourth Respondent

GREG WARREN
Fifth Respondent

TERRY LEE
Sixth Respondent

PETER MOONEY
Seventh Respondent

JOHN PARKER
Eighth Respondent

JUDGE:

GORDON J

DATE OF ORDER:

4 AUGUST 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.A penalty of $15,000 is imposed on the First Respondent for its contravention of s 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) by reason of it being vicariously liable for the conduct of the Fifth Respondent (Mr Warren) referred to in paragraph 5 of this Order.
2.A penalty of $14,000 is imposed on the Second Respondent for its contravention of s 44(1) of the BCII Act by reason of…

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: [2010] FCA 818
Decision Date: 4 August 2010

CaseChat Overview and Summary

In the matter of Hardwick v Australian Manufacturing Workers' Union, the Federal Circuit Court was tasked with determining the appropriate pecuniary penalties for contraventions of section 44 of the Building and Construction Industry Improvement Act 2005 (Cth). The respondents, various unions and their officials, engaged in conduct with the intent to coerce sub-contractors to enter into union building agreements. This conduct occurred at a construction site in Newmerella, Gippsland, Victoria, between late 2008 and early 2009. The court was required to decide whether the penalties agreed upon by the parties were within the permissible range under the BCII Act.

The court addressed the legal issues by examining whether the penalties imposed on the unions and their officials were proportionate and within the legislative limits. The court considered the severity of the contraventions, the intent behind the actions, and the financial capacity of the respondents to pay the penalties. The court held that the penalties were within the permissible range as they were not excessive and were appropriate given the nature and circumstances of the contraventions. The court also noted that the penalties reflected the gravity of the respondents' actions, which aimed to coerce sub-contractors into entering into union agreements, thereby undermining the integrity of the industrial relations framework.

Following its reasoning, the court imposed specific penalties on each respondent based on their level of involvement and the impact of their actions. The First Respondent, Australian Manufacturing Workers' Union, was fined $15,000 for being vicariously liable for the actions of Mr Warren. Similarly, the Second Respondent, Construction, Forestry, Maritime, Mining and Energy Union, was fined $14,000 for the actions of Mr Lee. The Third Respondent, the Electrical Trades Union of Australia, was fined $11,000 for the actions of Mr Mooney, and the Fourth Respondent, the Plumbers and Gas Fitters Union of Australia, was fined $9,000 for the actions of Mr Parker. Additionally, individual fines were imposed on the union officials directly involved in the protests.

The court concluded by ordering that each of the penalties be paid to the Consolidated Revenue Fund within 30 days of the Order. The decision underscores the importance of adhering to the legislative framework governing industrial relations and the consequences of contravening the Building and Construction Industry Improvement Act.

Orders

Orders of the court

1. A penalty of $15,000 is imposed on the First Respondent for its contravention of s 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) by reason of it being vicariously liable for the conduct of the Fifth Respondent (Mr Warren) referred to in paragraph 5 of this Order.

2. A penalty of $14,000 is imposed on the Second Respondent for its contravention of s 44(1) of the BCII Act by reason of it being vicariously liable for the conduct of the Sixth Respondent (Mr Lee) referred to in paragraph 6 of this Order.

3. A penalty of $11,000 is imposed on the Third Respondent for its contravention of s 44(1) of the BCII Act by reason of it being vicariously liable for the conduct of the Seventh Respondent (Mr Mooney) referred to in paragraph 7 of this Order.

4. A penalty of $9,000 is imposed on the Fourth Respondent for its contravention of s 44(1) of the BCII Act by reason of it being vicariously liable for the conduct of the Eighth Respondent (Mr Parker) referred to in paragraph 8 of this Order.

5. A penalty of $5,000 is imposed on Mr Warren by reason of him, in contravention of s 44(1) of the BCII Act, organising the protests of the Patricia-Baleen Gas Plant located in Ewings Marsh Road, Newmerella, in Gippsland, Victoria (the Site) on various occasions between 29 November 2008 and 18 December 2008 with the intent to coerce certain sub-contractors working at the Site to agree to enter into building agreements under Pt 8 of the Workplace Relations Act 1996 (Cth) (now repealed) (building agreements).

6. A penalty of $6,000 is imposed on Mr Lee by reason of him, in contravention of s 44(1) of the BCII Act, organising the protests of the Site on various occasions between 29 November 2008 and 27 March 2009 with the intent to coerce certain sub-contractors working at the Site to agree to enter into building agreements.

7. A penalty of $4,000 is imposed on Mr Mooney by reason of him, in contravention of s 44(1) of the BCII Act, organising the protests of the Site on various occasions between 2 December 2008 and 27 March 2009 with the intent to coerce certain sub-contractors working at the Site to agree to enter into building agreements.

8. A penalty of $3,500 is imposed on Mr Parker by reason of him, in contravention of s 44(1) of the BCII Act, threatening to shut down the Site on 12 February 2009, such threat being made with the intent to coerce certain sub-contractors working at the Site to agree to enter into building agreements.

9. Each of the penalties referred to above be paid to the Consolidated Revenue Fund within 30 days of this Order.

Note:

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818
Parties:		SHAUN HARDWICK v AUSTRALIAN MANUFACTURING WORKERS' UNION, AUSTRALIAN WORKERS' UNION, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, GREG WARREN, TERRY LEE, PETER MOONEY and JOHN PARKER
File number:		VID 831 of 2009
Judge:		GORDON J
Date of judgment:		4 August 2010
Catchwords:		INDUSTRIAL LAW – pecuniary penalties for contravention of the s 44 of the Building and Construction Industry Improvement Act 2005 (Cth) – respondents engaged in conduct with intent to coerce sub-contractors to enter into union building agreements – where penalties agreed between the parties – whether penalties within permissible range
Legislation:		Building and Construction Industry Improvement Act 2005 (Cth) Workplace Relations Act 1996 (Cth)
Cases cited:		Cruse v Multiplex Ltd (2008) 172 FCR 279 Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR ¶41-993 Pine v Expoconti Pty Ltd (2005) 147 IR 426 Ponzio v B & P Caelli Constructions Pty Ltd & Others (2006) 157 IR 80 Ponzio v B & P Caelli Constructions Pty Ltd & Others (2007) 158 FCR 543 Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 Veen v R (No 2) (1988) 164 CLR 465 Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754
Date of hearing:	On the papers
Date of last submissions:	15 July 2010
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	30
Counsel for the Applicant:	JL Bourke
Solicitor for the Applicant:	Blake Dawson
Solicitor for the First, Second, Fifth and Sixth Respondents:	Maurice Blackburn Lawyers
Solicitor for the Third and Seventh Respondents:	Electrical Trades Union
Solicitor for the Fourth and Eighth Respondents:	Construction, Forestry, Mining and Energy Union

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 831 of 2009

JUDGE:	GORDON J
DATE OF ORDER:	4 AUGUST 2010
WHERE MADE:	MELBOURNE