Australian Building and Construction Commissioner v Molina [2020] FCAFC 97

Australian Building and Construction Commissioner v Molina [2020] FCAFC 97

The appeal must be dismissed because the primary judge correctly assessed the adverse action claim by reference to the case put by the appellant, requiring proof of prejudicial effect if the threat were carried out, and the appellant may not advance a new case on appeal. On the coercion claim, though the presumption in s 361 applies to threats with intent to coerce, the evidence did not establish that the threatened conduct by Mr Molina was unlawful, illegitimate, or unconscionable, or that it applied the necessary degree of compulsion to amount to coercion under established law. Orders for costs are permitted to be applied for by respondents within 14 days.

Parties
Appellant: Australian Building and Construction Commissioner; First Respondent: Walter Molina; Second Respondent: Construction, Forestry, Maritime, Mining and Energy Union
Jurisdiction
Australia
Judgment Date
29 May 2020
Procedural Posture
Appeal / Judgment/reasons
Outcome
Appeal dismissed
Legal Topics
Adverse Action, Coercion, Freedom of Association, Fair Work Act, Onus of Proof, Statutory Interpretation
Industrial Law Employment Law Adverse Action Coercion Freedom of Association Fair Work Act Onus of Proof Statutory Interpretation

Case Brief

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Parties

Australian Building and Construction Commissioner

Appellant

Walter Molina

First Respondent

Construction, Forestry, Maritime, Mining and Energy Union

Second Respondent

Procedural Posture

Appeal / Judgment/reasons

Legal Issues

  1. 1 Whether threatening to arrange a picket line constituted adverse action under section 346(b) of the Fair Work Act 2009 (Cth)
  2. 2 Whether threatening to arrange a picket line was done with intent to coerce under section 348 of the Fair Work Act 2009 (Cth)
  3. 3 Whether the presumption in section 361 of the Fair Work Act applies to threats of action with intent to coerce

Ratio Decidendi

The appeal must be dismissed because the primary judge correctly assessed the adverse action claim by reference to the case put by the appellant, requiring proof of prejudicial effect if the threat were carried out, and the appellant may not advance a new case on appeal. On the coercion claim, though the presumption in s 361 applies to threats with intent to coerce, the evidence did not establish that the threatened conduct by Mr Molina was unlawful, illegitimate, or unconscionable, or that it applied the necessary degree of compulsion to amount to coercion under established law. Orders for costs are permitted to be applied for by respondents within 14 days.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Leave to the respondents to apply for any cost orders within 14 days