FEDERAL CIRCUIT COURT OF AUSTRALIA
| TYSON v HEIKO CONSTRUCTIONS TRADING AS HEIKO CONSTRUCTIONS PTY LTD | [2019] FCCA 3643 |
| Catchwords: INDUSTRIAL LAW – Adverse action – coercion – where applicant pleaded dismissal because of specific complaints made – where applicant pleaded coercive comments made to him by supervisor – where applicant pleaded coercion pursuant to s.343 of FW Act 2009 – coercion under that section not made out – whether Court can look at whether coercion pursuant to s.348 made out on the facts – a finding of coercion made – whether applicant exercised a workplace right – respondent discharged onus. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 343, 346, 347, 348, 349, 350, 361, 546, 545(2)(b) Work Health and Safety Act 2011 (Qld), s.39 |
| Applicant: | JOHN ROBERT TYSON |
| Respondent: | HEIKO CONSTRUCTIONS T/A HEIKO CONSTRUCTIONS PTY LTD |
| File Number: | BRG 823 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 5, 6 and 7 November 2019 |
| Date of Last Submission: | 7 November 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 12 December 2019 |
REPRESENTATION
The Applicant appearing on his own behalf with a McKenzie friend.
| Counsel for the Respondent: | Mr Murdoch QC assisted by Mr Martin of Counsel |
| Solicitors for the Respondent: | James Conomos Lawyers |
ORDERS
The Court declares that the Respondent, Heiko Constructions Pty Ltd, contravened s.348 of the Fair Work Act in that Mr Barrios attempted to coerce the Applicant into re-joining the CFMEU and paying his union dues by threatening the Applicant that he could not work on an EBA job unless he paid the union and that if he didn’t pay the union, he would be employed elsewhere for a wage that “sucked”.
In all other respects, the Application filed on 13 August 2018 as amended on 9 November 2018, 20 December 2018 and 17 January 2019 be dismissed.
That the further hearing of the matter be adjourned to a date to be fixed for submissions on the question of penalty and compensation.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 823 of 2018
| JOHN ROBERT TYSON |
Applicant
And
| HEIKO CONSTRUCTIONS T/A HEIKO CONSTRUCTIONS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, John Robert Tyson, is a very experienced building labourer. He was born on 11 January 1965. His specialty is “patching”.
The Applicant was working for the Respondent on the “Jewel project” in Surfers Paradise during the relevant period. On 25 September 2017, the Applicant witnessed an accident…
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- Case
- [2019] FCCA 3643
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether Mr Tyson had been dismissed in contravention of the *Fair Work Act 2009* due to adverse action, specifically whether he had exercised a workplace right and whether he had been subjected to coercion. The Court was required to determine if the alleged coercion, as pleaded under section 343 of the Act, was made out, and if not, whether it could consider coercion under section 348 of the Act based on the established facts. Furthermore, the Court had to assess whether the respondent employer had discharged its onus of proof in demonstrating that the adverse action was not taken for a prohibited reason.
Judge Vasta found that while coercion under section 343 of the *Fair Work Act 2009* was not established on the facts, the Court could and did consider whether coercion under section 348 of the Act was made out. The Court ultimately made a finding of coercion under section 348. The Court determined that Mr Tyson had exercised a workplace right. Crucially, the respondent failed to discharge its onus of proving that the adverse action taken against Mr Tyson was not for a prohibited reason, namely the exercise of his workplace rights and the coercion he experienced.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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