Tyson v Heiko Constructions Trading as Heiko Constructions Pty Ltd - [2019] FCCA 3643

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

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Creedon v Measey Investments Pty Ltd [1988] NTSC 80; (1988) 91 FLR 318
Dare v Pulham [1982] HCA 70

Esso Australia Pty Ltd v Australian Workers Union [2017] HCA 54

Fair Work Ombudsman v OzKorea Pty Ltd & Ors [2018] FCCA 2350

Gould v Mount Oxide Mines Ltd (in Liq) [1916] HCA 81
S P Hywood Pty Ltd v Standard Chartered Bank Ltd [1992] SASC 3764
Stuart v Rabobank Australia Limited [2018] FCA 30
Vines v ASIC [2007] NSWCA 75

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…

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: [2019] FCCA 3643
Decision Date: 12 December 2019

CaseChat Overview and Summary

In *Tyson v Heiko Constructions Trading as Heiko Constructions Pty Ltd*, the applicant, Mr Tyson, brought proceedings against his former employer, Heiko Constructions Pty Ltd, alleging adverse action under the *Fair Work Act 2009* (Cth). Mr Tyson contended that his dismissal was a consequence of specific complaints he had made and coercive comments made to him by his supervisor. The matter was heard in the Federal Court of Australia before Judge Vasta.

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