Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FCA 1302

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FCA 1302

Directions given by Mr Mattas to groups of employees to cease work were invalid where he was not a validly appointed HSR for those groups and thus those employees engaged in unlawful industrial action within s 46 of the BCI Act; Mr Mattas contravened s 46 by organising that action; Mr Blakeley did not organise or was not knowingly involved in organisation for s 46, but contravened s 52 by threatening that workers would not return unless Mr Millan was removed (illegitimate coercion); the Union was liable for the relevant contraventions by operation of s 95 BCI Act.

Jurisdiction
Australia
Judgment Date
30 October 2023
Procedural Posture
Civil (employment and Industrial Relations) / Post Trial; Judgment on Liability, Further Hearing Listed to Determine Relief
Outcome
Liability judgment; matter to be listed for further hearing on relief.
Legal Topics
['unlawful Industrial Action' 'coercion Under Industrial Legislation' 'work Health and Safety Representative Powers' 'validity of Directions to Cease Work' 'collateral Challenge to Administrative Acts']
['industrial Law' 'administrative Law' 'employment Law'] ['unlawful Industrial Action' 'coercion Under Industrial Legislation' 'work Health and Safety Representative Powers' 'validity of Directions to Cease Work' 'collateral Challenge to Administrative Acts']

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Procedural Posture

Civil (employment and Industrial Relations) / Post Trial; Judgment on Liability, Further Hearing Listed to Determine Relief

Legal Issues

  1. 1 ['Whether the respondents organised unlawful industrial action within the meaning of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCI Act)' 'Whether directions to cease work under s 85 Work Health and Safety Act 2011 (Qld) were validly made' 'Whether employees were required to comply with directions if invalid' 'Whether directions were validly made under cl 9.9 of the Enterprise Agreements' 'Whether stoppages were excluded industrial action' 'Whether there was unlawful coercion under s 52 of the BCI Act' 'Whether the Union is liable for contraventions']

Ratio Decidendi

Directions given by Mr Mattas to groups of employees to cease work were invalid where he was not a validly appointed HSR for those groups and thus those employees engaged in unlawful industrial action within s 46 of the BCI Act; Mr Mattas contravened s 46 by organising that action; Mr Blakeley did not organise or was not knowingly involved in organisation for s 46, but contravened s 52 by threatening that workers would not return unless Mr Millan was removed (illegitimate coercion); the Union was liable for the relevant contraventions by operation of s 95 BCI Act.

Court Disposition

Liability judgment; matter to be listed for further hearing on relief.

Orders

  • ["Matter to be listed for a hearing to determine appropriate relief for the first and third respondents' contraventions of s 46 BCI Act and respondents' contraventions of s 52 BCI Act."]