Alfred v Wakelin (No 4) [2009] FCA 267

Alfred v Wakelin (No 4) [2009] FCA 267

Given the close relationship and joint liability of the unions, penalties for contraventions of the Building and Construction Industry Improvement Act are apportioned equally; further penalties for breaches of the Workplace Relations Act by the national union are adjusted for totality to reflect proportionate responsibility and overlapping conduct. A moderate, not high-end, penalty is justified, and the unions' factual circumstances and prior records are considered. Individual penalty for delegate Joseph O'Connor is set similarly with reduction for totality.

Parties
Applicant: Gregory Charles Alfred; First Respondent: Robert Wakelin; Second Respondent: Charles Abela; Third Respondent: Mark Batzloff; Fourth Respondent: Robert Jones; Fifth Respondent: Joseph O'Connor; Sixth Respondent: The Australian Workers' Union; Seventh Respondent: The Australian Workers' Union, New South Wales; Eighth Respondent: Construction, Forestry, Mining & Energy Union; Ninth Respondent: Construction Forestry, Mining & Energy Industrial Union of Employees, Queensland; Tenth Respondent: Australian Building Construction Employees and Builders' Labourers Federation (Queensland Branch) Union of Employees; Eleventh Respondent: Federated Engine Drivers' and Firemens' Association of Queensland, Union of Employees
Jurisdiction
Australia
Judgment Date
26 March 2009
Procedural Posture
Industrial Penalty Proceeding / Determination of Penalties Following Liability Findings
Outcome
Penalties imposed on Joseph O'Connor, the Australian Workers' Union, and the Australian Workers' Union, New South Wales for statutory contraventions.
Legal Topics
Unlawful Industrial Action, Penalties, Workplace Relations, Trade Union Responsibility, Building and Construction Industry
Industrial Law Employment Law Unlawful Industrial Action Penalties Workplace Relations Trade Union Responsibility Building and Construction Industry

Case Brief

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Parties

Gregory Charles Alfred

Applicant

Robert Wakelin

First Respondent

Charles Abela

Second Respondent

Mark Batzloff

Third Respondent

Robert Jones

Fourth Respondent

Joseph O'Connor

Fifth Respondent

The Australian Workers' Union

Sixth Respondent

The Australian Workers' Union, New South Wales

Seventh Respondent

Construction, Forestry, Mining & Energy Union

Eighth Respondent

Construction Forestry, Mining & Energy Industrial Union of Employees, Queensland

Ninth Respondent

Australian Building Construction Employees and Builders' Labourers Federation (Queensland Branch) Union of Employees

Tenth Respondent

Federated Engine Drivers' and Firemens' Association of Queensland, Union of Employees

Eleventh Respondent

Procedural Posture

Industrial Penalty Proceeding / Determination of Penalties Following Liability Findings

Legal Issues

  1. 1 Appropriate penalties for unlawful industrial action
  2. 2 Application of totality principle to penalties
  3. 3 Attribution of liability to unions for actions of delegates

Ratio Decidendi

Given the close relationship and joint liability of the unions, penalties for contraventions of the Building and Construction Industry Improvement Act are apportioned equally; further penalties for breaches of the Workplace Relations Act by the national union are adjusted for totality to reflect proportionate responsibility and overlapping conduct. A moderate, not high-end, penalty is justified, and the unions' factual circumstances and prior records are considered. Individual penalty for delegate Joseph O'Connor is set similarly with reduction for totality.

Court Disposition

Penalties imposed on Joseph O'Connor, the Australian Workers' Union, and the Australian Workers' Union, New South Wales for statutory contraventions.

Orders

  • Joseph O'Connor to pay penalties: $6,500 for October 2005 and $2,500 for November 2005.
  • The Australian Workers' Union to pay penalties: $20,000 for October 2005 and $8,000 for November 2005.