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Williams v Construction, Forestry, Mining and Energy Union (No 2)

Williams v Construction, Forestry, Mining and Energy Union (No 2)

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FEDERAL COURT OF AUSTRALIA
Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548
INDUSTRIAL LAW – Contraventions of anti-coercion provisions of legislation – Penalties to be imposed – Inherent seriousness of conduct – Whether aggravating or mitigatory circumstances existed – Relevance of prior contraventions – Whether prior contraventions of another statute, or by officials of another branch or division of corporate respondent, or in relation to which no finding of contravention had been made before the conduct relevant to the instant case, should be taken into account.
Building and Construction Industry Improvement Act 2005 (Cth)
Workplace Relations Act 1996 (Cth)
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Alfred v Walter Construction Group Limited [2005] FCA 497
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231
Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
R v Aston (No 2) [1991] 1 Qd R 375
Stuart-Mahoney v CFMEU [2008] FCA 1426
Temple v Powell (2008) 173 IR 189
The Queen v McInerney (1986) 42 SASR 111
Veen v The Queen [No 2] (1988) 164 CLR 465
ANDREW WILLIAMS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and ROBERT MATES
VID 1219 of 2007
JESSUP J
28 MAY 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:

28 MAY 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.A penalty of $55,000.00 be imposed on Construction, Forestry, Mining and Energy Union for procuring a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ a person as a building employee, or to engage a person as a building contractor, in contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).
2.A penalty of $45,000.00 be imposed on Construction, Forestry, Mining and Energy Union for threatening to procure a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ a person as a building employee, or to engage a person as a building contractor, in contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).
3.A penalty of $8,250.00 be imposed on Robert Mates for procuring a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ…

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 548
Decision Date: 28 May 2009

CaseChat Overview and Summary

The Federal Court heard an application by Kane Constructions Pty Ltd against the Construction, Forestry, Mining and Energy Union and Robert Mates, relating to industrial action at a construction site in Alphington, Victoria. The applicant sought penalties for unlawful procurement and threats of a stoppage of work, alleging that the respondents had acted with intent to coerce the builder to employ or engage a person in contravention of the Building and Construction Industry Improvement Act 2005 (Cth). The court had to determine whether the stoppage of work and the threats were unlawful under the Act, and if so, whether the respondents were liable for penalties and whether the applicant was entitled to costs.

The court found that the respondents had indeed procured and threatened a stoppage of work with the requisite intent. It emphasised that the provisions of the Act were designed to prevent coercive practices in the building and construction industry and protect builders from being forced into employing or engaging persons against their will. The court held that the actions of the respondents constituted an interference with the builder’s rights to determine their own employment and contracting practices. The penalties imposed reflected the seriousness of the contraventions and the need to deter such conduct. The court also awarded costs to the applicant, recognising that the proceedings were necessary to protect the applicant’s rights under the Act.

The court’s decision underscored the importance of adhering to the provisions of the Building and Construction Industry Improvement Act 2005 (Cth) and the consequences of contravening those provisions. The penalties imposed served both as a punishment and a deterrent against future unlawful actions. The orders for costs reflected the need to compensate the applicant for the resources expended in defending their rights.

Orders

Orders of the court

1. A penalty of $55,000.00 be imposed on Construction, Forestry, Mining and Energy Union for procuring a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ a person as a building employee, or to engage a person as a building contractor, in contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).

2. A penalty of $45,000.00 be imposed on Construction, Forestry, Mining and Energy Union for threatening to procure a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ a person as a building employee, or to engage a person as a building contractor, in contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).

3. A penalty of $8,250.00 be imposed on Robert Mates for procuring a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ a person as a building employee, or to engage a person as a building contractor, in contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).

4. A penalty of $6,750.00 be imposed on Robert Mates for threatening to procure a stoppage of work on the construction site at 372 Darebin Rd, Alphington, Victoria, on 31 July 2006 with intent to coerce the builder, Kane Constructions Pty Ltd, to employ a person as a building employee, or to engage a person as a building contractor, in contravention of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth).

5. The penalties referred to in orders 1, 2, 3 and 4 above be paid to the Consolidated Revenue Fund on or before 30 June 2009.

6. The respondents pay one-half of the applicant’s costs of the proceeding.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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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:	28 MAY 2009
WHERE MADE:	MELBOURNE