Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

The appeal was dismissed. The Commissioner's pleadings did not satisfy the preconditions for the s 361 presumption to operate in relation to the alleged contraventions of ss 343 and 355, because the alleged reasons and intents were not pleaded with the required precision and the material facts of coercion were not pleaded. In relation to the alleged contraventions of s 340, although the reasons were difficult to construe, read as a whole the primary judge's reasons included findings that Mr Hall, Mr Miller and Mr Smith had discharged the onus imposed by s 361 by establishing that they did not act for a proscribed reason; no reversible error was shown.

Jurisdiction
Australia
Judgment Date
31 May 2018
Procedural Posture
Industrial Law Appeal From a Judgment of the Federal Court of Australia Concerning Alleged Contraventions of Part 3 1 of the Fair Work Act 2009 (cth) / Appeal to the Full Court of the Federal Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['fair Work Act 2009 (cth) Part 3 1' 'workplace Rights' 'adverse Action' 'coercion' 'reverse Onus of Proof' 'multiple Reasons for Action' 'pleadings' 'standard of Proof']
['industrial Law' 'employment and Industrial Relations' 'civil Penalties'] ['fair Work Act 2009 (cth) Part 3 1' 'workplace Rights' 'adverse Action' 'coercion' 'reverse Onus of Proof' 'multiple Reasons for Action' 'pleadings' 'standard of Proof']

Case Brief

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Procedural Posture

Industrial Law Appeal From a Judgment of the Federal Court of Australia Concerning Alleged Contraventions of Part 3 1 of the Fair Work Act 2009 (cth) / Appeal to the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the primary judge erred in applying the presumptions in ss 360 and 361 of the Fair Work Act 2009 (Cth).' 'Whether the Commissioner pleaded and established the material facts necessary for the presumption in s 361 to operate in relation to alleged contraventions of ss 343 and 355 of the Fair Work Act 2009 (Cth).' 'Whether, in relation to the alleged contraventions of s 340 of the Fair Work Act 2009 (Cth), the primary judge failed to give effect to the reverse onus in s 361.' 'Whether the primary judge erred in applying s 140 of the Evidence Act 1995 (Cth) and in assessing evidence about the Praga Café meeting and alleged statements by respondents.' 'Whether the primary judge gave adequate reasons for rejecting evidence relied on by the Commissioner.']

Ratio Decidendi

The appeal was dismissed. The Commissioner's pleadings did not satisfy the preconditions for the s 361 presumption to operate in relation to the alleged contraventions of ss 343 and 355, because the alleged reasons and intents were not pleaded with the required precision and the material facts of coercion were not pleaded. In relation to the alleged contraventions of s 340, although the reasons were difficult to construe, read as a whole the primary judge's reasons included findings that Mr Hall, Mr Miller and Mr Smith had discharged the onus imposed by s 361 by establishing that they did not act for a proscribed reason; no reversible error was shown.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.']