Cahill v Construction Forestry Mining and Energy Union (No 2)[2008] FCA 1292

Cahill v Construction Forestry Mining and Energy Union (No 2)[2008] FCA 1292

The definition of 'building industrial action' in s 36(1)(b) and (c) of the Building and Construction Industry Improvement Act 2005 (Cth) is not confined to bans, limitations or restrictions imposed only by employees in respect of their own work, but extends to actions imposed by unions such as the CFMEU, provided the other definitional criteria are met.

Parties
Applicant: Chris Cahill; First Respondent: Construction Forestry Mining and Energy Union; Second Respondent: Bob Mates
Jurisdiction
Australia
Judgment Date
04 August 2008
Procedural Posture
Industrial Law (civil Penalty Proceeding) / Ruling on No Case to Answer Submission (interlocutory)
Outcome
Respondents' submission that the definition of 'building industrial action' is limited to employee-imposed bans is rejected; the Court rules on this interpretive issue without requiring election. Ruling on the remaining no-case submissions is deferred unless respondents elect to call no further evidence.
Legal Topics
Interpretation of 'building Industrial Action' Under BCII Act, No Case to Answer Submissions, Statutory Construction, Liability of Unions for Industrial Action
Industrial Law Practice and Procedure Interpretation of 'building Industrial Action' Under BCII Act No Case to Answer Submissions Statutory Construction Liability of Unions for Industrial Action

Case Brief

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Parties

Chris Cahill

Applicant

Construction Forestry Mining and Energy Union

First Respondent

Bob Mates

Second Respondent

Procedural Posture

Industrial Law (civil Penalty Proceeding) / Ruling on No Case to Answer Submission (interlocutory)

Legal Issues

  1. 1 Whether 'ban, limitation or restriction on the performance of building work' in paras (b) and (c) of the definition of 'building industrial action' in s 36(1) of the Building and Construction Industry Improvement Act 2005 (Cth) is confined to bans imposed by employees in respect of their own work or can extend to action by unions;
  2. 2 Whether discretion should be exercised to require party to elect not to call evidence prior to ruling on no case submission;

Ratio Decidendi

The definition of 'building industrial action' in s 36(1)(b) and (c) of the Building and Construction Industry Improvement Act 2005 (Cth) is not confined to bans, limitations or restrictions imposed only by employees in respect of their own work, but extends to actions imposed by unions such as the CFMEU, provided the other definitional criteria are met.

Court Disposition

Respondents' submission that the definition of 'building industrial action' is limited to employee-imposed bans is rejected; the Court rules on this interpretive issue without requiring election. Ruling on the remaining no-case submissions is deferred unless respondents elect to call no further evidence.

Orders

  • Respondents' construction of s 36(1)(b)-(c) of the BCII Act rejected; application to be determined accordingly.
  • Respondents to be put to their election regarding remaining no-case submissions in respect of all causes of action.