Construction, Forestry, Mining and Energy Union v Eco Recyclers Pty Ltd [2013] FCA 24

Construction, Forestry, Mining and Energy Union v Eco Recyclers Pty Ltd [2013] FCA 24

There is a serious issue to be tried that McCorkell and the State of Victoria have engaged or threaten to engage in adverse action and coercion for reasons prohibited under the Fair Work Act. The applicant has established a prima facie case with a good prospect of success at trial. The balance of convenience favours the making of interlocutory orders to restrain the second and third respondents from refusing or inducing the refusal to use Eco's services because of any actual or perceived non-compliance of the Eco Agreement with the Code or Guidelines, pending early trial. Restraints preventing the Fair Work Commission from dealing with the variation application are not granted at this stage.

Jurisdiction
Australia
Judgment Date
24 January 2013
Procedural Posture
Originating Application for Interlocutory Relief / Decision on Interlocutory Relief Pending Trial
Outcome
Interlocutory relief granted in part, with undertakings and specific orders against the second and third respondents; proposed restraints on the Fair Work Commission and the variation application not granted at this time.
Legal Topics
['fair Work Act 2009 (cth) Ss 340 and 343' 'adverse Action' 'coercion' 'interlocutory Injunctions' 'enterprise Agreements' 'victorian Code of Practice for the Building and Construction Industry']
['industrial Law' 'employment Law'] ['fair Work Act 2009 (cth) Ss 340 and 343' 'adverse Action' 'coercion' 'interlocutory Injunctions' 'enterprise Agreements' 'victorian Code of Practice for the Building and Construction Industry']

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Procedural Posture

Originating Application for Interlocutory Relief / Decision on Interlocutory Relief Pending Trial

Legal Issues

  1. 1 ["Whether the conduct of the State of Victoria and McCorkell Constructions constitutes 'adverse action' and/or 'coercion' under the Fair Work Act 2009 (Cth) ss 340 and 343" "Whether interlocutory relief restraining the respondents' actions should be granted"]

Ratio Decidendi

There is a serious issue to be tried that McCorkell and the State of Victoria have engaged or threaten to engage in adverse action and coercion for reasons prohibited under the Fair Work Act. The applicant has established a prima facie case with a good prospect of success at trial. The balance of convenience favours the making of interlocutory orders to restrain the second and third respondents from refusing or inducing the refusal to use Eco's services because of any actual or perceived non-compliance of the Eco Agreement with the Code or Guidelines, pending early trial. Restraints preventing the Fair Work Commission from dealing with the variation application are not granted at this stage.

Court Disposition

Interlocutory relief granted in part, with undertakings and specific orders against the second and third respondents; proposed restraints on the Fair Work Commission and the variation application not granted at this time.

Orders

  • ["The parties have liberty to apply on one working day's written notice." 'The trial is to be expedited.' 'Applicant to file and serve statement of claim by 1 February 2013.' 'Respondents to file and serve defences by 11 February 2013.' 'Applicant to file and serve any reply by 18 February 2013.' 'Proceeding...