Employment Advocate v Williamson [2001] FCA 1164

Employment Advocate v Williamson [2001] FCA 1164

Both alleged contraventions failed because there was insufficient evidence to establish the existence of any employee or prospective employee affected by the shop steward's statements or to identify any person against whom prohibited action under s 298K could be taken; moreover, the particulars confined the case to one individual who was not an employee, and the case could not be expanded on appeal. Thus, there was no breach of s 298P(3).

Parties
Appellant: Jonathan Hamberger, The Employment Advocate; First Respondent: Ian Williamson; Second Respondent: The Construction, Forestry, Mining and Energy Union
Jurisdiction
Australia
Judgment Date
24 August 2001
Procedural Posture
Civil Appeal / Full Federal Court Appeal From Single Judge Decision
Outcome
Appeal dismissed
Legal Topics
Freedom of Association, Trade Unions, Prohibited Conduct Under Workplace Relations Act 1996 (cth), Improperly Obtained Evidence, Meaning of 'advise, Encourage, Or Incite', Procedural Fairness in Pleadings/particularisation
Industrial Law Evidence Law Freedom of Association Trade Unions Prohibited Conduct Under Workplace Relations Act 1996 (cth) Improperly Obtained Evidence Meaning of 'advise, Encourage, or Incite' Procedural Fairness in Pleadings/particularisation

Case Brief

Summary, issues, holding and outcome

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Parties

Jonathan Hamberger, The Employment Advocate

Appellant

Ian Williamson

First Respondent

The Construction, Forestry, Mining and Energy Union

Second Respondent

Procedural Posture

Civil Appeal / Full Federal Court Appeal From Single Judge Decision

Legal Issues

  1. 1 Whether statements by a union official constituted advice, encouragement or incitement to contravene s 298K of the Workplace Relations Act 1996 (Cth)
  2. 2 Whether there was sufficient evidence to establish contraventions of s 298P(3) in absence of an identified employee/prospective employee
  3. 3 Whether evidentiary requirements and particulars were met in relation to alleged breaches

Ratio Decidendi

Both alleged contraventions failed because there was insufficient evidence to establish the existence of any employee or prospective employee affected by the shop steward's statements or to identify any person against whom prohibited action under s 298K could be taken; moreover, the particulars confined the case to one individual who was not an employee, and the case could not be expanded on appeal. Thus, there was no breach of s 298P(3).

Court Disposition

Appeal dismissed

Orders

  • The appeal be dismissed.
  • No order as to costs.