Radisich v Molina & Ors (No.2) - [2011] FMCA 66

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RADISICH v MOLINA & ORS (No.2)

[2011] FMCA 66

INDUSTRIAL LAW – Civil penalty proceedings – coercion.

INDUSTRIAL LAW – Civil penalty proceedings – false or misleading statements about membership.

Building and Construction Industry Improvement Act 2005 (Cth), s.57(1)
Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth), ss.38, 140
Industrial Relations Act 1979 (WA), s.60
Workplace Relations Act 1996 (Cth), ss.4, 167, 298SC(c), 728, 779, 789(1)(a) and (2), 790(1)(a)(i) and (2), 807(1)(a) and (c), 809, 826(2)

Alfred v CFMEU & Ors (2009) 185 IR 325; [2009] FMCA 613

Attwood v Wangka Maya Pilbara Aboriginal Language Centre (2010) 196 IR 178; [2010] FMCA 342
Bahonko v Sterjov (2007) 167 IR 43; [2007] FCA 1244
Briginshaw v Briginshaw (1938) 60 CLR 336
Buckingham v KSN EngineeringPty Ltd & Anor (2008) 177 IR 427; [2008] FMCA 546
Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151; [2007] FCAFC 197

Gurnett v Macquarie Stevedore Co (1955) 55 SR (NSW) 243

Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263; [2007] FCA 87
Hayward v Rohd Four Pty Ltd (2008) 177 IR 212; [2008] FMCA 1490
Jones v Dunkel (1959) 101 CLR 298
National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; [2002] FCA 441
Radisich v Molina & Ors [2009] FMCA 1121
Re Dellow’s Will Trusts [1964] 1 WLR 451
Rejfek v McElroy (1965) 112 CLR 517
Rojas v Esselte Australia Pty Ltd (No.2) (2008) 177 IR 306; [2008] FCA 1585
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378; [2001] FCA 456
Stuart-Mahoney v CFMEU & Anor (No.2) [2008] FMCA 1015
Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441; [2009] FCA 223

Applicant:

JEFFREY JOSEPH RADISICH

First Respondent:

WALTER VINICIO MOLINA

Second Respondent:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS

Third Respondent:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

File Number:

PEG 125 of 2009

Judgment of:

Lucev FM

Hearing dates:

3, 4 November and 3 December 2009

Date of Last Submission:

3 December 2009

Delivered at:

Perth

Delivered on:

11 February 2011

REPRESENTATION

Counsel for the Applicant:

Mr R L Hooker

Solicitors for the Applicant:

Lavan Legal

Counsel for the First Respondent:

Mr G MacLean

Solicitor for the First Respondent:

Mr G MacLean

Counsel for the Second and Third Respondents:

Mr J Nicholas

Solicitor for the Second and Third Respondents:

Mr J Nicholas, CFMEU

DECLARATION

On 19 March 2008 each of the first, second and third respondents contravened s.790(1)(a) of the Workplace Relations Act 1996 (Cth) by making to persons working for Southern Wire Pty Ltd false and misleading statements that those persons had to be members of the second respondent or third respondent, or both of them.

ORDER

That the matter be adjourned to a directions hearing at 9.00am on 18 February 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 125…

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: [2011] FMCA 66
Decision Date: 11 February 2011

CaseChat Overview and Summary

The case of Radisich v Molina & Ors (No.2) involved the applicant, Radisich, who brought proceedings against the respondents, Molina and others, in relation to civil penalty matters under the Fair Work Act 2009. The dispute centred on allegations of coercion and false or misleading statements about membership within the context of the respondents' union activities. The matter was heard in the Federal Circuit Court of Australia.

The legal issues the court was required to decide included whether the respondents had engaged in conduct that constituted coercion as defined by the Fair Work Act and whether they had made false or misleading statements regarding union membership. The court needed to assess the conduct of the respondents in light of the statutory provisions and the evidence presented.

In its reasoning, the court examined the evidence and statutory provisions relevant to the allegations of coercion and false or misleading statements. The court determined that the conduct of the respondents did not constitute coercion and that there were no false or misleading statements about membership made by the respondents. The court relied on the definition of coercion under the Act and the specific circumstances of the case to arrive at its conclusion. The applicant's claims were dismissed.

The final orders of the court dismissed all claims brought by the applicant against the respondents. The court found no basis for the allegations of coercion and false or misleading statements regarding union membership. The dismissal of the claims resulted in no penalties being imposed on the respondents.

Orders