Temple v Powell [2008] FCA 714

Temple v Powell [2008] FCA 714

The respondents contravened s 170MN of the Workplace Relations Act 1996 (Cth), s 178 of the same Act, and s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) by engaging in unauthorized industrial action and failing to comply with dispute resolution procedures. Section 49 of the Building and Construction Industry Improvement Act 2005 (Cth) applies to conduct occurring after 9 March 2005, and penalties are imposed as prescribed by statute. Declaratory relief is denied due to lack of utility and potential for misleading implications.

Parties
Applicant: Mark Temple; First Respondent: Michael Powell; Second Respondent: Construction, Forestry, Mining and Energy Union of Workers; Third Respondent: Joseph McDonald; Fourth Respondent: Construction, Forestry, Mining and Energy Union
Jurisdiction
Australia
Judgment Date
23 May 2008
Procedural Posture
Application for Declaratory Orders and Pecuniary Penalties / Judgment
Outcome
Penalties imposed for contraventions; declaratory relief denied; no order as to costs.
Legal Topics
Unauthorized Industrial Action, Breach of Dispute Resolution Agreement, Retrospective Application of Statutes, Imposition of Civil Penalties
Industrial Relations Unauthorized Industrial Action Breach of Dispute Resolution Agreement Retrospective Application of Statutes Imposition of Civil Penalties

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Parties

Mark Temple

Applicant

Michael Powell

First Respondent

Construction, Forestry, Mining and Energy Union of Workers

Second Respondent

Joseph McDonald

Third Respondent

Construction, Forestry, Mining and Energy Union

Fourth Respondent

Procedural Posture

Application for Declaratory Orders and Pecuniary Penalties / Judgment

Legal Issues

  1. 1 Whether respondents contravened s 170MN of the Workplace Relations Act 1996 (Cth) by engaging in industrial action during the operation of certified agreements
  2. 2 Whether respondents breached dispute resolution procedure clauses in certified agreements, contravening s 178 of the Workplace Relations Act 1996 (Cth)
  3. 3 Whether Mr Powell, Construction, Forestry, Mining and Energy Union of Workers and Construction, Forestry, Mining and Energy Union contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) by engaging in unlawful industrial action

Ratio Decidendi

The respondents contravened s 170MN of the Workplace Relations Act 1996 (Cth), s 178 of the same Act, and s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) by engaging in unauthorized industrial action and failing to comply with dispute resolution procedures. Section 49 of the Building and Construction Industry Improvement Act 2005 (Cth) applies to conduct occurring after 9 March 2005, and penalties are imposed as prescribed by statute. Declaratory relief is denied due to lack of utility and potential for misleading implications.

Court Disposition

Penalties imposed for contraventions; declaratory relief denied; no order as to costs.

Orders

  • Michael Powell to pay a penalty of $1,000 for contravention of s 170MN of Workplace Relations Act 1996 (Cth) on 17 August 2005.
  • Michael Powell to pay a pecuniary penalty of $2,500 for contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) on 25 August 2005.