Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Abseal Case) [2017] FCA 11

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Abseal Case) [2017] FCA 11

Although the omission to induct the Abseal workers prejudiced them and Abseal, the operative reason for the failure to induct was the absence and later non-review of Abseal's Safe Work Method Statement, not non-payment of union dues, the absence of a specialised rope access enterprise agreement, Abseal's workplace right, or agreement coverage. The alleged CFMEU requirements and agency were not established, and the case against the CFMEU was wholly derivative of the rejected case against Mr Karamitos.

Jurisdiction
Australia
Judgment Date
19 January 2017
Procedural Posture
Application for Declarations and Penalties for Alleged Contraventions of Ss 340, 346 and 354 of the Fair Work Act 2009 (cth) / Final Judgment After Hearing
Outcome
Application dismissed.
Legal Topics
['adverse Action' 'industrial Activity' 'workplace Rights' 'discrimination Against Employer' 'union Membership Fees' 'enterprise Agreements' 'site Induction' 'safe Work Method Statement' 'derivative Union Liability']
['industrial Law' 'employment and Industrial Relations'] ['adverse Action' 'industrial Activity' 'workplace Rights' 'discrimination Against Employer' 'union Membership Fees' 'enterprise Agreements' 'site Induction' 'safe Work Method Statement' 'derivative Union Liability']

Case Brief

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Procedural Posture

Application for Declarations and Penalties for Alleged Contraventions of Ss 340, 346 and 354 of the Fair Work Act 2009 (cth) / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether Mr Karamitos took adverse action against Abseal, Mr Kostal or Mr Miller because of industrial activity involving non-payment of CFMEU fees or the absence of a specialised rope access enterprise agreement.' 'Whether Abseal had and proposed to exercise a workplace right under the Abseal agreement and incorporated award provisions, and whether adverse action was taken because of that right or to prevent its exercise.' 'Whether the failure to induct Mr Kostal and Mr Miller discriminated against Abseal because its employees were covered by the Abseal agreement and not a specialised rope access enterprise agreement.' 'Whether Mr Karamitos was acting on behalf of the CFMEU so that any conduct or liability could be attributed to the CFMEU under ss 363 and 793 of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

Although the omission to induct the Abseal workers prejudiced them and Abseal, the operative reason for the failure to induct was the absence and later non-review of Abseal's Safe Work Method Statement, not non-payment of union dues, the absence of a specialised rope access enterprise agreement, Abseal's workplace right, or agreement coverage. The alleged CFMEU requirements and agency were not established, and the case against the CFMEU was wholly derivative of the rejected case against Mr Karamitos.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.']