Construction, Forestry, Mining and Energy Union v Clarke [2006] FCA 245

Construction, Forestry, Mining and Energy Union v Clarke [2006] FCA 245

The Industrial Magistrate was correct in finding that the Union and its officers (the appellants) directly engaged in industrial action on 29 July 2004 contrary to s 170MN of the Workplace Relations Act 1996 (Cth), as the actions of the members constitute actions of the Union, and evidence supported direct involvement. Positive steps by officers to prevent action did not exonerate the Union, as no duality of existence exists; no error in findings of fact or law by the Magistrate was established, and the appeal must be dismissed.

Parties
Appellant: Construction, Forestry, Mining and Energy Union; Appellant: Michael Powell; Appellant: Walter Vinicio Molina; Respondent: Marcus Thomas Clarke
Jurisdiction
Australia
Judgment Date
17 March 2006
Procedural Posture
Appeal / Judgment on Appeal From Industrial Magistrate's Court
Outcome
appeal dismissed
Legal Topics
Industrial Action, Breach of Certified Agreement, Workplace Relations, Liability of Union for Actions of Members, Dispute Resolution Procedures
Employment Law Industrial Law Industrial Action Breach of Certified Agreement Workplace Relations Liability of Union for Actions of Members Dispute Resolution Procedures

Case Brief

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Parties

Construction, Forestry, Mining and Energy Union

Appellant

Michael Powell

Appellant

Walter Vinicio Molina

Appellant

Marcus Thomas Clarke

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Industrial Magistrate's Court

Legal Issues

  1. 1 Whether the appellants engaged in industrial action contrary to a certified agreement in breach of s 170MN of the Workplace Relations Act 1996 (Cth)
  2. 2 Whether actions of union members amounted to conduct of the Union under the Act
  3. 3 Whether positive steps by union officials to prevent industrial action exonerate the Union

Ratio Decidendi

The Industrial Magistrate was correct in finding that the Union and its officers (the appellants) directly engaged in industrial action on 29 July 2004 contrary to s 170MN of the Workplace Relations Act 1996 (Cth), as the actions of the members constitute actions of the Union, and evidence supported direct involvement. Positive steps by officers to prevent action did not exonerate the Union, as no duality of existence exists; no error in findings of fact or law by the Magistrate was established, and the appeal must be dismissed.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.