Hadgkiss v Construction, Forestry, Mining and Energy Union (No. 5) [2008] FCA 1040

Hadgkiss v Construction, Forestry, Mining and Energy Union (No. 5) [2008] FCA 1040

The Court found that the alleged contraventions of s 298S(2)(a) of the Act were not established because the words spoken by the third respondent did not amount to advice, encouragement or incitement for the proscribed reason of non-union membership. The presumption under s 298V was rebutted, with the actual motive found not to be related to union membership. Additional penalties were just and appropriate for proven contraventions of s 298SC(c) in accordance with the totality principle.

Parties
Applicant: Nigel Clive Hadgkiss; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Construction, Forestry, Mining and Energy Union (New South Wales Branch); Third Respondent: Edmond Casper; Fourth Respondent: Michael Lane
Jurisdiction
Australia
Judgment Date
14 July 2008
Procedural Posture
Civil Penalty Application Under Workplace Relations Act 1996 (cth) / Remittal for Further Consideration and Final Orders After Full Court Appeal
Outcome
Applicant's claims in respect of the alleged contraventions of s 298S(2)(a) dismissed; further penalties imposed on the first, second, and fourth respondents for additional established contraventions of s 298SC(c); no order as to costs for remitted matters.
Legal Topics
Freedom of Association, Civil Penalties, Onus of Proof Reversal, Totality Principle in Penalties, Discriminatory Action, Union Membership
Workplace Relations Industrial Law Freedom of Association Civil Penalties Onus of Proof Reversal Totality Principle in Penalties Discriminatory Action Union Membership

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Parties

Nigel Clive Hadgkiss

Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Construction, Forestry, Mining and Energy Union (New South Wales Branch)

Second Respondent

Edmond Casper

Third Respondent

Michael Lane

Fourth Respondent

Procedural Posture

Civil Penalty Application Under Workplace Relations Act 1996 (cth) / Remittal for Further Consideration and Final Orders After Full Court Appeal

Legal Issues

  1. 1 Whether respondents contravened s 298S(2)(a) Workplace Relations Act 1996 (Cth) by advising, encouraging, or inciting discriminatory action against eligible persons because of union membership status.
  2. 2 Whether the presumption under s 298V of the Act was rebutted regarding intent.
  3. 3 Imposition of appropriate penalties for further contraventions of s 298SC(c) after remittal.

Ratio Decidendi

The Court found that the alleged contraventions of s 298S(2)(a) of the Act were not established because the words spoken by the third respondent did not amount to advice, encouragement or incitement for the proscribed reason of non-union membership. The presumption under s 298V was rebutted, with the actual motive found not to be related to union membership. Additional penalties were just and appropriate for proven contraventions of s 298SC(c) in accordance with the totality principle.

Court Disposition

Applicant's claims in respect of the alleged contraventions of s 298S(2)(a) dismissed; further penalties imposed on the first, second, and fourth respondents for additional established contraventions of s 298SC(c); no order as to costs for remitted matters.

Orders

  • Fourth respondent Michael Lane to pay a penalty of $2,000 for contravention of the Act (Declaration 1(j)).
  • First respondent to pay a penalty of $5,000 for contravention of the Act (Declaration 1(k)).