Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson

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FEDERAL COURT OF AUSTRALIA

Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCAFC 208  

Appeal from: Tyson v Heiko Constructions T/A Heiko Constructions Pty Ltd [2019] FCCA 3643
File number: QUD 788 of 2019
Judgment of: COLLIER, LOGAN AND GRIFFITHS JJ
Date of judgment: 25 November 2020
Catchwords: EMPLOYMENT AND INDUSTRIAL RELATIONS – where the Federal Circuit Court of Australia made a declaration of contravention of s 348 of the Fair Work Act 2009 (Cth) – where the allegation which raised s 348 for consideration as a way of characterising the conduct as a contravention was struck out – whether the appellant was denied procedural fairness – whether a contravention of s 348 was proved – whether the object of the coercion can be characterised as a “workplace right”
Legislation:

Constitution Ch III

CommonwealthConciliation and Arbitration Act 1904 (Cth) ss 19, 22, 26, 55

Competition and Consumer Act 2010 (Cth) s 76

Corporations Act 2001 (Cth) s 1317G

Crimes Act 1914 (Cth) s 15C

Customs Act 1901 (Cth) ss 234, 247, 251

Evidence Act 1995 (Cth) s 140

Excise Act 1901 (Cth) ss 136, 140

Fair Work (Registered Organisations) Act 2009 (Cth)

Fair Work Act 2009 (Cth) ss 12, 340, 341, 343, 346, 347, 348, 350, 361, 484, 489, 539, 551, 793

Federal Circuit Court of Australia Act 1999 (Cth) s 42, 43

Federal Court of Australia Act 1976 (Cth) ss 23, 24, 37M, 38

High Court Procedure Act 1903 (Cth) s 23

Income Tax Assessment Act 1936 (Cth)

Industrial Relations Act 1988 (Cth)

Workplace Relations Act 1996 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 4.05, r 7.01, r 45.06

Federal Court Rules 1979 (Cth) O 13, r 2

Federal Court Rules 2011 (Cth) r 1.32, r 8.21, r 15.15, r 16.51

High Court Rules 2004 (Cth) r 3.01.1

Criminal Code 1899 (Qld) s 572

Justices Act 1886 (Qld) s 48

Trade Unions Act 1886 (Qld)

Summary Jurisdiction Act 1848 (UK)

The Combination Act 1824 (5 Geo. 4, c. 95) (UK)

The Combination Act 1825 (6 Geo. 4, c. 129) (UK)

The Conspiracy and Protection of Property Act 1875 (38 & 39 Vict. 86) (UK)

The Trade Union Act 1871 (34 & 35 Vict. 31) (UK)

The Trade Union Act 1876 (39 & 40 Vict. 22) (UK)
Cases cited:

Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38

Amalgamated Society of Railway Servants v Osborne [1910] AC 87

Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347

Australian Federation of Air Pilots v Australian Airlines Ltd (1991) 28 FCR 360

Australian Industry Group v Fair Work Australia (2012) 205 FCR 339

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001)…

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Details
Case
[2020] FCAFC 208
Decision Date

CaseChat Overview and Summary

Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson was an appeal brought before the Federal Court of Australia. The dispute revolved around the Federal Circuit Court of Australia's declaration that Heiko Constructions Pty Ltd contravened section 348 of the Fair Work Act 2009 (Cth). The appellant, Mr Tyson, alleged that his employer coerced him to engage in industrial activity, specifically becoming a member of the Construction, Forestry, Mining and Energy Union (CFMEU), an industrial association. The primary issue before the court was whether the appellant was denied procedural fairness and whether a contravention of section 348 of the Fair Work Act was proved. Additionally, the court needed to determine whether the object of the coercion could be characterised as a "workplace right."

The court found that there was procedural unfairness in the way the case was handled at the Federal Circuit Court. The primary judge had introduced section 348 of the Fair Work Act as a way of characterising the conduct as a contravention, but this was after the allegation which raised section 348 for consideration was struck out. The court concluded that it was not appropriate for the primary judge to introduce section 348 in this manner. Furthermore, the court held that the object of the coercion, ending union membership, could not be characterised as a "workplace right" under the Fair Work Act, but rather as an "industrial activity."

As a result of the procedural unfairness and the mischaracterisation of the object of coercion, the court allowed the appeal in part, set aside the orders made by the Federal Circuit Court, and declared that Heiko Constructions Pty Ltd contravened section 348 of the Fair Work Act. The matter was remitted to the Federal Circuit Court for a new trial to determine penalty and compensation. Additionally, the cross-appellant was granted leave to amend their notice of cross-appeal, and the cross-appeal was dismissed. The parties were given an opportunity to be heard on costs, both of the proceeding below and the costs of and incidental to both the appeal and the cross-appeal.

Orders

Orders of the court

1. The appeal be allowed in part.

2. The declaration made in paragraph 1 of the order of the Federal Circuit Court of Australia (Federal Circuit Court) made on 12 December 2019 (Order under appeal) be set aside.

3. In lieu therefore, it be declared:

On 27 April 2018, the respondent, Heiko Constructions Pty Ltd, contravened s 348 of the Fair Work Act 2009 (Cth) (FWA) in that it took action, namely, the making, by Mr Louis Barrios, of a threat to its employee, the applicant, Mr John Robert Tyson, to the effect that, if Mr Tyson re-joined the Construction, Forestry, Mining and Energy Union (CFMEU), he could enjoy, or continue to enjoy, the pay and benefits of an “EBA job” whereas, if he did not, he would have to find another job “for a wage that sucks” (“half the money”), ie half of Mr Tyson’s then EBA job based pay, with intent to coerce Mr Tyson to engage in industrial activity, namely, becoming a member of the CFMEU, an industrial association.

4. The matter be remitted to the Federal Circuit Court for the hearing as to penalty and compensation contemplated by paragraph 3 of the Order under appeal but in respect of the contravention of the FWA as declared by this order.

5. Save as aforesaid, the appeal be dismissed.

6. The cross-appellant have leave to amend his notice of cross appeal so as to include the additional ground relating to s 341(1)(a) of the FWA specified in the draft amended notice of cross appeal annexed to his submissions filed herein on 10 August 2020 (annexed draft).

7. The filing and service of a notice of cross appeal as so amended be dispensed with, the annexed draft being deemed to be the amended notice of cross appeal.

8. The cross appeal be dismissed.

9. Any application as to the costs of either or each of the appeal and cross appeal be filed within 7 days hereof and served forthwith thereafter.

10. In the event that no such application as to costs is filed, there be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

His Honour noted, at [111], that “ending union membership” was the only “workplace right” which Mr Tyson had particularised. Section 348 of the FWA came to be introduced by the learned primary judge as a sequel to his conclusion that ending union membership was not a “workplace right” in terms of s 341 of the FWA and because he characterised doing so as an “industrial activity” within the meaning of s 347 of the FWA. His Honour stated, at [114] – [117]:114.It seems to me that “ending union membership” is not a workplace right under the FW Act but instead is “an industrial activity”.115.The protection afforded to an employee in relation to industrial activities can be found in ss.346-350 of the FW Act. In relation to the facts of this matter, it would seem that s.348 is most apposite. That section, also titled “coercion”, reads … [text of s 348 not reproduced]116.When that section is taken into account, it seems to me, that the facts of this matter more properly fit into an allegation that there had been a breach of s.348 rather than s.343. This fortifies my view that “ending union membership” is not “a workplace right” as that term is applied in the FW Act.117.Notwithstanding that I am satisfied that Mr Barrios threatened and applied pressure to the Applicant, in an unconscionable manner, in order for him to pay his union dues, I am not satisfied that the Applicant has proven the essential element of s.343 that “ending union membership” is a workplace right.[emphasis added] Before elaborating further upon the reasons for judgment of the primary judge, some reference must now be made to the course of oral submissions after the close of evidence at the trial. This reveals that the reference in his Honour’s reasons for judgment to s 348 of the FWA was not entirely unheralded. The transcript discloses that, after his Honour had raised whether what Mr Tyson had alleged as a workplace right was really an “industrial activity” in terms of s 347 of the FWA, s 348 was mentioned in response by Mr C Murdoch QC, who appeared with Mr C Martin of Counsel for Heiko both at trial and on the appeal. Mr Murdoch stated, what “your Honour is describing is – is, really … a breach of section 348”. A lengthy, related exchange then occurred between his Honour and Mr Murdoch. In the course of that exchange, Mr Murdoch put that the position was akin to a charge made in an indictment which was not made out and his Honour recalled that, “if the facts do this even though it’s not indicted you can actually be convicted for others”. His Honour then overtly reflected on whether the same position applied in the present situation. He stated:But I’m just not too sure here whether unless you have – unless you have – if you – if you talked about a particular section and it’s not the proper section, whether the facts enable, you know, a judge or – to – to look at it and say, “Well, yes, that – that section may not have been breached but this one might have.”In response, Mr Murdoch stated, and his Honour in response repeated, that, “We haven’t come to meet that”. To this, Mr Murdoch added, “... and particularly given the reverse onus, Mr Barrios hasn’t – hasn’t given evidence in respect of that.” and that he was not aware of any provision of the FWA that “allows a similar approach”. The latter, in context, was obviously a reference to the criminal jurisdiction practice mentioned by his Honour earlier in their exchange with the reference to “the reverse onus” being a reference to s 361 of the FWA. There was no elaboration as to the nature of the evidentiary prejudice which Heiko might suffer.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Grounds 4 to 7 are predicated on an assumption that there was no procedural unfairness. They are properly viewed as being alternative to grounds of appeal 1 to 3, which all relate to procedural unfairness. Because I consider that there was procedural unfairness, I think it unnecessary to determine grounds 4 to 7. The matter should be remitted to the primary judge for a retrial and determination according to law, including in the light of how Mr Tyson pleads any contravention of s 348 of the Fair Work Act and the grant of such leave as may be required. Conclusion For these reasons, I would allow the appeal and set aside the orders dated 12 December 2019 of the Federal Circuit Court of Australia. The proceeding should be remitted to the Federal Circuit Court of Australia for a new trial according to law. The cross-appellant should have leave to amend his notice of cross-appeal so as to include the additional ground relating to s 341(1)(a) of the Fair Work Act specified in the draft amended notice of cross-appeal annexed to his submissions filed herein on 10 August 2020 (annexed draft). The filing and service of the notice of cross-appeal as so amended should be dispensed with and the annexed draft should be deemed to be the amended notice of cross-appeal. The cross-appeal should be dismissed. As requested, the parties should have an opportunity to be heard on costs, both of the proceeding below and the costs of and incidental to both the appeal and the cross-appeal. Each should do so by filing an outline of submissions, not exceeding five pages, to be exchanged and filed within 14 days hereof. Each party should indicate in its outline of submissions whether it considers that any application for costs should be heard and determined on the papers and without a further oral hearing. In the event that no party seeks costs, there will be no order as to costs.

Ratio Decidendi

Legal Principle Established

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