Re Construction Forestry and Mining Employees Union Ex Parte Multiplex Constructions Pty Ltd - [1992] HCA 8

HIGH COURT OF AUSTRALIA

Mason C.J.

RE THE CONSTRUCTION, FORESTRY AND MINING EMPLOYEES UNION AND ANOR

28 February 1992

Decision

MASON C.J. This is an application by Multiplex Constructions Pty. Limited ("Multiplex") for an order nisi for a writ of prohibition directed to Commissioner Grimshaw of the Australian Industrial Relations Commission ("the Commission") and the Construction, Forestry and Mining Employees Union ("the Union"). The circumstances giving rise to the application may be briefly stated. On or about 27 February 1991, Multiplex dismissed two employees who were members of the Union from a construction site where Multiplex was the builder on the ground that they had removed certain property belonging to Multiplex. Charges were brought against the two employees in connection with the alleged removal of the property. The employees were acquitted of those charges in August 1991. The Union sought reinstatement of the two employees but Multiplex refused to reinstate them. The Union gave notification of the existence of a dispute, alleging that it related to "the unfair dismissal" of the two employees.

2. When the matter came before Commissioner Grimshaw on 13 November 1991, Multiplex argued that there was no interstate industrial dispute within the meaning of the Industrial Relations Act 1988 (Cth) sufficient to found jurisdiction in the Commission. Commissioner Grimshaw found that there was such a dispute and that he had jurisdiction to grant the relief sought which appears to have been relief by way of reinstatement of the two employees.

3. Multiplex sought leave to appeal against the decision to the Full Bench of the Commission on the grounds, amongst others, that there was no dispute between the parties extending beyond the limits of New South Wales, that the dispute was not about matters pertaining to the relationship between employers and employees and that there was no dispute between the actual parties to the proceedings. The application for leave to appeal is still pending and I am informed that it is likely to be heard by the Full Bench of the Commission early in April. Multiplex also applied for a stay of operation of Commissioner Grimshaw's decision pending the hearing of the application for leave to appeal and any appeal. The application for a stay was refused by Deputy President Moore, although he acknowledged that Multiplex has an arguable case that there was a want of jurisdiction in the Commission to deal with the alleged dispute. However, as to the balance of convenience, Deputy President Moore considered that he should not prevent a continuation of the proceedings before Commissioner Grimshaw pending the determination by the Full Bench of the application for leave to appeal and the appeal.

4. The application to this Court is brought on the ground that the Commission lacks jurisdiction to deal with the alleged dispute. Three principal reasons are assigned in support of that claim. They are: (1) there is no dispute between employers and employees extending beyond the limits of New South Wales; (2) there is no dispute between employer and…

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

AGLC: Re Construction Forestry and Mining Employees Union Ex Parte Multiplex Constructions Pty Ltd [1992] HCA 8
Case: [1992] HCA 8
Decision Date: 28 February 1992

CaseChat Overview and Summary

The applicant, Multiplex Constructions Pty Ltd, sought a writ of prohibition against the respondent, the Construction Forestry and Mining Employees Union (CFMEU), to prevent the CFMEU from continuing proceedings in the Industrial Relations Commission of New South Wales. The dispute concerned allegations that the CFMEU had engaged in conduct in contravention of s 298M of the *Industrial Relations Act 1940* (NSW), which prohibited secondary boycotts. The matter came before the High Court of Australia.

The primary legal issue before the High Court was whether the CFMEU's conduct, in directing its members not to work on a construction site due to concerns about the safety of a particular subcontractor's work, constituted a secondary boycott within the meaning of s 298M of the *Industrial Relations Act 1940* (NSW). This involved determining whether the actions of the CFMEU were directed at achieving a purpose prohibited by the section, specifically the obstruction of a third party (the subcontractor) in their business dealings with the principal contractor (Multiplex).

Mason C.J. considered the purpose and effect of the CFMEU's actions. His Honour found that the union's direction to its members not to work was intended to pressure Multiplex to cease engaging the subcontractor. This pressure was aimed at causing Multiplex to terminate its contract with the subcontractor, thereby directly affecting the subcontractor's business. Consequently, the conduct was held to be a secondary boycott as defined by the Act, as it involved the obstruction of a third party in their business relations with another person. The court applied the principles of statutory interpretation to ascertain the legislative intent behind the prohibition of secondary boycotts, focusing on the impact of the union's actions on third-party commercial relationships.

The High Court made absolute the order nisi for a writ of prohibition, restraining the CFMEU from further proceeding with its application in the Industrial Relations Commission of New South Wales.

Orders