Hamberger v Construction Forestry Mining & Energy Union [2002] FCA 586

Hamberger v Construction Forestry Mining & Energy Union [2002] FCA 586

The fourth respondent, acting as an official of the second respondent, threatened to take industrial action against Poppi, Thinee and Thomas with intent to coerce them to join an industrial association. The conduct was confrontational, intimidating, persisted in despite Poppi's statement that union membership was not compulsory, and interfered with the subcontractors' freedom to choose whether to join a union. The second respondent provided no evidence disavowing knowledge, authorisation, tolerance or condonation of the conduct and showed no contrition. Although the threat was not carried out, deterrence was required. Penalties of $5,000 against the second respondent and $750 against the...

Jurisdiction
Australia
Judgment Date
09 May 2002
Procedural Posture
Industrial Law Proceeding Under the Workplace Relations Act 1996 (cth) Concerning Contraventions of Part XA / Penalty After Findings of Contravention of S 298 S(2) Against the Second and Fourth Respondents
Outcome
Penalties imposed on the second and fourth respondents for contravention of s 298S(2) of the Workplace Relations Act 1996 (Cth).
Legal Topics
['workplace Relations Act 1996 (cth)' 'freedom of Association' 'industrial Action' 'coercion to Join an Industrial Association' 'civil Penalties' 'deterrence']
['industrial Law'] ['workplace Relations Act 1996 (cth)' 'freedom of Association' 'industrial Action' 'coercion to Join an Industrial Association' 'civil Penalties' 'deterrence']

Case Brief

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Procedural Posture

Industrial Law Proceeding Under the Workplace Relations Act 1996 (cth) Concerning Contraventions of Part XA / Penalty After Findings of Contravention of S 298 S(2) Against the Second and Fourth Respondents

Legal Issues

  1. 1 ['What penalty, if any, should be imposed on the second respondent for contravention of s 298S(2) of the Workplace Relations Act 1996 (Cth) on 4 March 1999.' 'What penalty, if any, should be imposed on the fourth respondent for contravention of s 298S(2) of the Workplace Relations Act 1996 (Cth) on 4 March 1999.' 'Whether the absence of carried-out threats, actual adverse consequences, prior contraventions by the fourth respondent, or evidence of repetition reduced or removed the need for penalty.' "Whether the second respondent's liability through the deeming provision in s 298B(2) warranted no penalty or a reduced penalty."]

Ratio Decidendi

The fourth respondent, acting as an official of the second respondent, threatened to take industrial action against Poppi, Thinee and Thomas with intent to coerce them to join an industrial association. The conduct was confrontational, intimidating, persisted in despite Poppi's statement that union membership was not compulsory, and interfered with the subcontractors' freedom to choose whether to join a union. The second respondent provided no evidence disavowing knowledge, authorisation, tolerance or condonation of the conduct and showed no contrition. Although the threat was not carried out, deterrence was required. Penalties of $5,000 against the second respondent and $750 against the...

Court Disposition

Penalties imposed on the second and fourth respondents for contravention of s 298S(2) of the Workplace Relations Act 1996 (Cth).

Orders

  • ['A penalty of $5,000 be imposed on the second respondent for contravention of s 298S(2) of the Act on 4 March 1999.' 'A penalty of $750 be imposed on the fourth respondent for contravention of s 298S(2) of the Act on 4 March 1999.' 'Each of the penalties so imposed be paid into the Consolidated Revenue Fund.']