Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168

Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168

Union organisers directly contravened s 417 by organising stop-work meetings and departures from site during the operation of enterprise agreements; their conduct was attributable to the CFMEU under s 793. Accessorial liability under s 550 requires knowledge of agreement coverage, which was not proven in all cases. Adverse action and coercion claims under ss 346, 348 were not established as there was no evidence of implied requests or requirements by the CFMEU to Kane regarding right of entry procedures.

Parties
Applicant: Australian Building and Construction Commission; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Michael Powell; Third Respondent: Peter Booth; Fourth Respondent: Stephen Long; Fifth Respondent: Derek Christopher; Sixth Respondent: Bill Beattie; Seventh Respondent: John Perkovic; Eighth Respondent: Theo Theodorou; Ninth Respondent: Brendan Murphy; Tenth Respondent: Gerard Benstead; Eleventh Respondent: Joseph Myles
Jurisdiction
Australia
Judgment Date
01 March 2017
Procedural Posture
Civil / Post Liability, Before Penalty Determination
Outcome
Applicant succeeded under s 417; adverse action and coercion claims dismissed; matter listed for submissions as to appropriate final orders and penalties.
Legal Topics
Industrial Action, Right of Entry, Enterprise Agreement, Accessorial Liability, Adverse Action, Coercion, Practice and Procedure
Employment & Industrial Relations Industrial Action Right of Entry Enterprise Agreement Accessorial Liability Adverse Action Coercion Practice and Procedure

Case Brief

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Parties

Australian Building and Construction Commission

Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Michael Powell

Second Respondent

Peter Booth

Third Respondent

Stephen Long

Fourth Respondent

Derek Christopher

Fifth Respondent

Bill Beattie

Sixth Respondent

John Perkovic

Seventh Respondent

Theo Theodorou

Eighth Respondent

Brendan Murphy

Ninth Respondent

Gerard Benstead

Tenth Respondent

Joseph Myles

Eleventh Respondent

Procedural Posture

Civil / Post Liability, Before Penalty Determination

Legal Issues

  1. 1 Whether industrial action was organised by union organisers in breach of Fair Work Act s 417
  2. 2 Whether union organisers are liable as accessories under s 550
  3. 3 Whether union conduct can be attributed to the CFMEU under s 793

Ratio Decidendi

Union organisers directly contravened s 417 by organising stop-work meetings and departures from site during the operation of enterprise agreements; their conduct was attributable to the CFMEU under s 793. Accessorial liability under s 550 requires knowledge of agreement coverage, which was not proven in all cases. Adverse action and coercion claims under ss 346, 348 were not established as there was no evidence of implied requests or requirements by the CFMEU to Kane regarding right of entry procedures.

Court Disposition

Applicant succeeded under s 417; adverse action and coercion claims dismissed; matter listed for submissions as to appropriate final orders and penalties.

Orders

  • The proceeding be listed for submissions on the terms of the orders proper to reflect the reasons of the court and as to penalties.