Wilson v Nesbit [2009] FCA 1574

Wilson v Nesbit [2009] FCA 1574

The first respondent's threats to have the employer banned from building sites and subjected to an expensive workplace health and safety audit were an abuse of power intended to coerce the employer to terminate its existing workplace agreement and enter into a new agreement with the CFMEU, contravening s 44(1). The CFMEU also contravened s 44(1) by virtue of its officer's conduct. Having regard to the seriousness of the threats, deterrence, lack of previous contraventions by the first respondent, the discrete and apparently out-of-character nature of the incident, the CFMEU's prior history and responsibility to guide its officers, and the respondents' cooperation, penalties of $9,000 and...

Jurisdiction
Australia
Judgment Date
23 December 2009
Procedural Posture
Application for Declaratory Relief and Pecuniary Penalties for Contraventions of the Building and Construction Industry Improvement Act 2005 (cth) / Reasons for Judgment Following Admissions and Agreed Statement of Facts; Penalties Imposed
Outcome
Declarations made; pecuniary penalties imposed on the first and third respondents; applicant granted leave to amend the application to correct the first respondent's surname.
Legal Topics
['coercion Regarding Workplace Agreements' 'building Enterprise Agreements' 'pecuniary Penalties' 'union Officer Conduct' 'vicarious Responsibility of Industrial Association']
['industrial Law'] ['coercion Regarding Workplace Agreements' 'building Enterprise Agreements' 'pecuniary Penalties' 'union Officer Conduct' 'vicarious Responsibility of Industrial Association']

Case Brief

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Procedural Posture

Application for Declaratory Relief and Pecuniary Penalties for Contraventions of the Building and Construction Industry Improvement Act 2005 (cth) / Reasons for Judgment Following Admissions and Agreed Statement of Facts; Penalties Imposed

Legal Issues

  1. 1 ['Whether the first respondent contravened s 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth) by threatening action with intent to coerce an employer to terminate its current workplace agreement and enter into a new workplace agreement with the CFMEU.' 'Whether the CFMEU contravened s 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth) by virtue of the conduct of its officer, the first respondent.' 'What pecuniary penalties should be imposed on the first and third respondents.']

Ratio Decidendi

The first respondent's threats to have the employer banned from building sites and subjected to an expensive workplace health and safety audit were an abuse of power intended to coerce the employer to terminate its existing workplace agreement and enter into a new agreement with the CFMEU, contravening s 44(1). The CFMEU also contravened s 44(1) by virtue of its officer's conduct. Having regard to the seriousness of the threats, deterrence, lack of previous contraventions by the first respondent, the discrete and apparently out-of-character nature of the incident, the CFMEU's prior history and responsibility to guide its officers, and the respondents' cooperation, penalties of $9,000 and...

Court Disposition

Declarations made; pecuniary penalties imposed on the first and third respondents; applicant granted leave to amend the application to correct the first respondent's surname.

Orders

  • ['The first respondent pay to the Commonwealth of Australia a pecuniary penalty fixed at $9,000.' 'The third respondent pay to the Commonwealth of Australia a pecuniary penalty fixed at $40,000.' 'The applicant have leave to amend the application in accordance with the Reasons for Judgment and is directed...