Australian Building and Construction Commissioner v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2017] FCA 704

Australian Building and Construction Commissioner v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2017] FCA 704

The applicant failed to prove, to the standard required by s 140 of the Evidence Act 1995 (Cth) and Briginshaw principles, that the second respondent made the disputed threats. The Court preferred the second respondent's evidence, found inconsistencies and omissions in the evidence of Mr Wild and Mr Fitzpatrick, and considered that the second respondent's statements were more likely about lobbying builders to prefer union contractors. Because the disputed threats were not proved, the alleged contraventions were not established and the proceeding was dismissed.

Jurisdiction
Australia
Judgment Date
23 June 2017
Procedural Posture
Application Alleging Contravention of S 343(1) of the Fair Work Act 2009 (cth) and Seeking Declarations and Pecuniary Penalties / Final Judgment After Hearing
Outcome
The proceeding was dismissed.
Legal Topics
['coercion' 'enterprise Agreements' 'civil Remedy Provisions' 'standard of Proof' 'union Conduct']
['industrial Law' 'employment and Industrial Relations'] ['coercion' 'enterprise Agreements' 'civil Remedy Provisions' 'standard of Proof' 'union Conduct']

Case Brief

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Procedural Posture

Application Alleging Contravention of S 343(1) of the Fair Work Act 2009 (cth) and Seeking Declarations and Pecuniary Penalties / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the second respondent made the pleaded threats at the 16 September 2013 meeting.' 'Whether any threats were made with the intent of coercing Wild Company to make an enterprise agreement with the first respondent in contravention of s 343(1) of the Fair Work Act 2009 (Cth).' 'Whether the first respondent was taken to have engaged in the alleged contravention by operation of ss 363 and 793 of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

The applicant failed to prove, to the standard required by s 140 of the Evidence Act 1995 (Cth) and Briginshaw principles, that the second respondent made the disputed threats. The Court preferred the second respondent's evidence, found inconsistencies and omissions in the evidence of Mr Wild and Mr Fitzpatrick, and considered that the second respondent's statements were more likely about lobbying builders to prefer union contractors. Because the disputed threats were not proved, the alleged contraventions were not established and the proceeding was dismissed.

Court Disposition

The proceeding was dismissed.

Orders

  • ['The proceeding be dismissed.']