Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83

By refusing to make changes to site amenities following a lawful request from the CFMEU, BPM was found (per current authority) to have engaged in 'industrial activity' under s 347(b)(iv) of the Fair Work Act 2009 (Cth); Long and Benstead organised industrial action (adverse action) against BPM due to its engagement in that industrial activity, contravening s 346(b). The organisation of industrial action was also found to have been with intent to coerce BPM to engage in industrial activity, thus contravening s 348. The conduct and state of mind of Long and Benstead were attributed to CFMEU pursuant to s 793, making the union liable for single contraventions of each section.

Jurisdiction
Australia
Judgment Date
13 February 2018
Procedural Posture
Civil / Post Liability/awaiting Relief/case Management Hearing
Outcome
Liability established for contravention of ss 346(b) and 348 by Long, Benstead, and the CFMEU; matter listed for a case management hearing to address relief/penalty.
Legal Topics
['fair Work Act 2009 (cth)' 'adverse Action' 'coercion' 'industrial Activity' 'freedom of Association' 'statutory Interpretation']
['employment & Industrial Relations' 'industrial Law'] ['fair Work Act 2009 (cth)' 'adverse Action' 'coercion' 'industrial Activity' 'freedom of Association' 'statutory Interpretation']

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Procedural Posture

Civil / Post Liability/awaiting Relief/case Management Hearing

Legal Issues

  1. 1 ["Whether BPM's failure to comply with CFMEU's request amounted to engaging in 'industrial activity' under s 347(b)(iv) or (v) of the Fair Work Act 2009 (Cth) for the purposes of ss 346(b) and 348" "Whether the refusal of an industrial claim can be said to be a refusal to 'represent or advance the views, claims or interests' of the industrial association under s 347(b)(v)" 'Proper construction and scope of s 347(b)(iv) and s 347(b)(v) of the Fair Work Act 2009 (Cth)' 'Whether conduct of Long and Benstead amounted to adverse action and/or coercion under the FW Act' 'Determination of liability for CFMEU under s 793']

Ratio Decidendi

By refusing to make changes to site amenities following a lawful request from the CFMEU, BPM was found (per current authority) to have engaged in 'industrial activity' under s 347(b)(iv) of the Fair Work Act 2009 (Cth); Long and Benstead organised industrial action (adverse action) against BPM due to its engagement in that industrial activity, contravening s 346(b). The organisation of industrial action was also found to have been with intent to coerce BPM to engage in industrial activity, thus contravening s 348. The conduct and state of mind of Long and Benstead were attributed to CFMEU pursuant to s 793, making the union liable for single contraventions of each section.

Court Disposition

Liability established for contravention of ss 346(b) and 348 by Long, Benstead, and the CFMEU; matter listed for a case management hearing to address relief/penalty.

Orders

  • ['The proceeding be listed for a case management hearing on a date to be fixed.']