Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87

Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87

The findings against the appellants could not stand because the central, unchallenged evidence was that Powell, for the Union, genuinely advised employees against industrial action and urged compliance with the Certified Agreement's dispute resolution procedure. On that evidence, attendance at meetings and later communication of the reasons for the stoppage to the employer did not make the Union, Powell or Molina a party to, or concerned in, the employees' withdrawal of labour under s 4(8) and s 170MN of the Workplace Relations Act 1996 (Cth). Levy's conduct as elected job representative was not pleaded as attributable to the Union and, in any event, agency was not proved. There was also...

Jurisdiction
Australia
Judgment Date
08 June 2007
Procedural Posture
Industrial Law Penalty Proceedings Concerning Alleged Contraventions of the Workplace Relations Act 1996 (cth) and a Certified Agreement / Full Court Appeal From a Single Judge of the Federal Court, Who Had Dismissed an Appeal From the Industrial Magistrate's Court of Western Australia
Outcome
Appeal allowed; orders of the primary judge and the Industrial Magistrate's Court of Western Australia set aside; proceeding in the Industrial Magistrate's Court dismissed.
Legal Topics
['industrial Action Under Greenfields Certified Agreement' 'dispute Resolution Procedures in Certified Agreement' 'whether Union and Organisers Were Party to, Or Concerned in, Industrial Action' 'attribution of Conduct of Elected Job Representative to Union' 'penalty Proceedings and Standard of Proof']
['industrial Law' 'agency' 'accessorial Liability'] ['industrial Action Under Greenfields Certified Agreement' 'dispute Resolution Procedures in Certified Agreement' 'whether Union and Organisers Were Party To, or Concerned In, Industrial Action' 'attribution of Conduct of Elected Job Representative to Union' 'penalty Proceedings and Standard of Proof']

Case Brief

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Procedural Posture

Industrial Law Penalty Proceedings Concerning Alleged Contraventions of the Workplace Relations Act 1996 (cth) and a Certified Agreement / Full Court Appeal From a Single Judge of the Federal Court, Who Had Dismissed an Appeal From the Industrial Magistrate's Court of Western Australia

Legal Issues

  1. 1 ["Whether the Union, Powell and Molina engaged in industrial action contrary to s 170MN of the Workplace Relations Act 1996 (Cth) by being directly or indirectly a party to, or concerned in, the employees' withdrawal of labour." 'Whether the appellants breached the dispute resolution procedures in cl 4.5 of the Certified Agreement for the purposes of s 178 of the Workplace Relations Act 1996 (Cth).' 'Whether the conduct of the elected job representative, Levy, was attributable to the Union as agent or representative.' 'Whether the Industrial Magistrate and the primary judge failed to deal with central evidence that the Union officials advised against industrial action and urged compliance with the Certified Agreement.']

Ratio Decidendi

The findings against the appellants could not stand because the central, unchallenged evidence was that Powell, for the Union, genuinely advised employees against industrial action and urged compliance with the Certified Agreement's dispute resolution procedure. On that evidence, attendance at meetings and later communication of the reasons for the stoppage to the employer did not make the Union, Powell or Molina a party to, or concerned in, the employees' withdrawal of labour under s 4(8) and s 170MN of the Workplace Relations Act 1996 (Cth). Levy's conduct as elected job representative was not pleaded as attributable to the Union and, in any event, agency was not proved. There was also...

Court Disposition

Appeal allowed; orders of the primary judge and the Industrial Magistrate's Court of Western Australia set aside; proceeding in the Industrial Magistrate's Court dismissed.

Orders

  • ['The appeal against the judgment of 17 March 2006 be allowed and the orders of 17 March 2006 be set aside.' "In lieu thereof, the appeal from the orders of the Industrial Magistrate's Court of Western Australia of 28 April 2005 be allowed and the orders of 28 April 2005 be set aside." "The proceeding in the...