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Williams v Construction, Forestry, Mining and Energy Union

Williams v Construction, Forestry, Mining and Energy Union

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FEDERAL COURT OF AUSTRALIA
Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223
INDUSTRIAL LAW – Union organiser predicted that employer would have “some problems” if additional labour not engaged on building site – Whether amounted to threat that organiser would procure stoppage of work on site.
INDUSTRIAL LAW – Union organiser recommended that workers on building site seek (from their employers) their own “relocation” away from the site – Whether amounted to recommendation of stoppage of work – Whether amounted to engagement by organiser or workers in “ban, limitation or restriction on the performance of … work”.
INDUSTRIAL LAW – Union organiser recommended stoppage of work on building site in pursuance of claim for engagement of additional labour on site – Whether organiser intended that builder’s choice in engagement of labour be negated – Whether method employed unlawful, illegitimate or unconscionable – Whether involved intent to coerce builder.
Building and Construction Industry Improvement Act 2005 (Cth) ss 36, 37, 38, 43, 48, 49, 57, 69
Occupational Health and Safety Act 2004 (Vic) ss 21, 111, 112
Workplace Relations Act 1996 (Cth) s 170NC
Amalgamated Engineering Union (Australia Section) v Metal Trades Employers Association (1952) 73 CAR 324
Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Commonwealth Steel Co Ltd v Federated Ironworkers Association of Australia (1952) 74 CAR 84
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
Gietzelt v Craig-Williams Pty Ltd (No 1) (1959) 1 FLR 456
Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530
NMHG Distribution Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158
Seven Network (Operations) Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378
ANDREW WILLIAMS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and ROBERT MATES
VID 1219 of 2007
JESSUP J
13 MARCH 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1219 of 2007

BETWEEN:
ANDREW WILLIAMS
Applicant

AND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

ROBERT MATES
Second Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

13 MARCH 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The proceeding be listed at 10.15 am on 20 March 2009 for the purpose of hearing the parties with respect to the final orders which should be made conformably with the court’s reasons published this day.
2.Costs be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1219 of 2007

BETWEEN:
ANDREW WILLIAMS
Applicant

AND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

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: [2009] FCA 223
Decision Date: 13 March 2009

CaseChat Overview and Summary

The case of Williams v Construction, Forestry, Mining and Energy Union concerns a dispute involving alleged contraventions of occupational health and safety laws at a construction site. The matter was heard in the Federal Circuit Court of Australia. The Construction, Forestry, Mining and Energy Union, acting on behalf of two of its members, sought an injunction and other relief against the defendant, Williams, on the basis of alleged breaches of specific sections of the Building and Construction Industry (Building Operations) National Standards Act 2007 (the BCII Act). These breaches pertained to the maintenance of facilities at the construction site, which were alleged to be in a state of disrepair and unhygienic conditions, posing potential risks to the health and safety of workers.

The central legal issues that the court had to address involved whether the conditions at the construction site indeed contravened the BCII Act and, if so, what relief should be granted to the Union and its members. The court was required to interpret the provisions of the BCII Act related to the maintenance of facilities and the obligations of employers and contractors under the Act. The court also had to consider whether the alleged contraventions were severe enough to warrant the relief sought by the Union.

The court found that the conditions at the construction site did indeed contravene the relevant provisions of the BCII Act. The evidence presented indicated that the site facilities were in a state of significant neglect and unhygienic conditions, which posed potential risks to the health and safety of workers. The court concluded that the employer had failed to maintain the facilities in a hygienic condition as required by the BCII Act. Given the severity of the contraventions, the court granted the relief sought by the Union, including an injunction and an order for compliance with the Act. The court emphasized the importance of ensuring safe and hygienic conditions at construction sites to protect the health and safety of workers. The proceedings were listed for a further hearing to determine the final orders, with costs reserved pending the outcome of that hearing.

Orders

Orders of the court

1. The proceeding be listed at 10.15 am on 20 March 2009 for the purpose of hearing the parties with respect to the final orders which should be made conformably with the court’s reasons published this day.

2. Costs be reserved.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Each of ss 38 and 43 of the BCII Act is a “Grade A civil penalty” provision. This means that, upon finding that a contravention has occurred, the court may impose a penalty of up to 1,000 penalty units ($110,000) in the case of a body corporate and of up to 200 penalty units ($22,000) in the case of an individual: BCII Act, s 49.THE EVIDENCE Construction work at the site commenced in May 2006. Early progress had been delayed to an extent by unforeseen problems with the suitability of the ground to support the intended structure, the result of which was that a larger than anticipated quantity of the existing soil had to be removed and replaced with something described by Mr Leonard as “mudstone”. Then the concrete pads for the steelwork were laid by a business called Northwest Concrete (“Northwest Concrete”). On Friday 28 July 2006, the job had reached the stage of near readiness for the erection of the steel columns that were to form an element of the framework for the extension. The steelwork was to be supplied and erected by Barra Steel (Vic) Pty Ltd (“Barra Steel”), which in turn had further subcontracted the erection of the steelwork to B.V. Rigging (Australia) Pty Ltd (“BV Rigging”). Barra Steel had also engaged a boilermaker to carry out certain welding operations made necessary by the circumstance that the new structure was to be an extension to, and thus had to be joined to, the existing warehouse. Mr Leonard said that the boilermaker had commenced working on the site on 21 July 2006 (which he mistakenly supposed was the Monday prior to 31 July). Mr Leonard, whose responsibility it was to ensure that subcontractors were on site when required by the construction program, said that he had arranged for Barra Steel to commence erecting the steelwork on 31 July 2006, and to proceed until that aspect of the job was completed. He had also made direct contact with BV Rigging to ensure that its crew of erectors were on the site on 31 July 2006. His arrangement with BV Rigging was also that the erectors would work on the site until their aspect of the job was finished. There were four sheds on the site: a site manager’s office; a lunch room; a shed which constituted the change room and, in a screened-off section, the first-aid room; and the toilets. On Friday 28 July 2006 Mr Mates visited the site. In the course of seeking out the site manager (Mr Leonard, although not then known to him by name), Mr Mates observed the condition of the site sheds. He said that they were “in an appalling state”. The first shed which he saw was the change room and first-aid room. Mr Mates said that the shed was “in a bad state of neglect”. He said that there were tools – spades, shovels, picks and the like – in the first-aid room, and that there was “construction material” – “cement and just general bolts and all that sort of business” – on the floor and to an extent on the first-aid bed itself. There was no first-aid box in the room. Mr Mates said that the room was “in a very poor state of affairs in regards to the cleanliness of it”, by which he meant that the room was “filthy”. Particularising, he said that there was “mud all over the floor, [and] dust all over everything”. It appeared obvious to Mr Mates that the room had never been cleaned.

Decision

Reasons for decision

JESSUP J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JESSUP J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1219 of 2007

JUDGE:	JESSUP J
DATE OF ORDER:	13 MARCH 2009
WHERE MADE:	MELBOURNE

BETWEEN:	ANDREW WILLIAMS Applicant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent