Hadgkiss v CFMEU [2008] FCAFC 22

Hadgkiss v CFMEU [2008] FCAFC 22

The Full Court held that the trial judge erred by not finding that Mr Lane's representation to Mr Suter on 17 February 2004 constituted a false or misleading representation under s 298SC(c) of the Act, as it was within the pleaded case and amounted to a representation about an obligation to join the union. The trial judge also erred in concluding that action against partnership members could not fall within the scope of 'eligible person' for s 298S(2)(a), and in not applying the reverse onus in s 298V. The appeal was allowed in part with certain findings/penalties to be remitted to the trial judge for further determination.

Jurisdiction
Australia
Judgment Date
05 March 2008
Procedural Posture
Appeal / On Appeal From a Single Judge of the Federal Court of Australia; Full Court Judgment
Outcome
Appeal allowed in part, otherwise dismissed. Certain additional declarations made. Matter remitted to trial judge for further consideration as to application of s 298V and any additional penalties.
Legal Topics
['false or Misleading Representation' 'industrial Association Membership Obligations' 'reverse Onus Provisions' 'discriminatory Action' 'workplace Relations']
['industrial Law'] ['false or Misleading Representation' 'industrial Association Membership Obligations' 'reverse Onus Provisions' 'discriminatory Action' 'workplace Relations']

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Procedural Posture

Appeal / On Appeal From a Single Judge of the Federal Court of Australia; Full Court Judgment

Legal Issues

  1. 1 ['Whether certain representations constituted false or misleading representations about an obligation to join an industrial association (s 298SC(c) of the Workplace Relations Act 1996)' 'Whether the trial judge correctly rejected claims of false or misleading representation or discriminatory incitement on the evidence' 'Whether the representation was about a present obligation, future intention, or objective, and whether that constituted a contravention' "Whether partnership members can be 'eligible persons' for the purposes of relevant provisions" 'Whether the reverse onus in s 298V was properly applied as to intent/motive']

Ratio Decidendi

The Full Court held that the trial judge erred by not finding that Mr Lane's representation to Mr Suter on 17 February 2004 constituted a false or misleading representation under s 298SC(c) of the Act, as it was within the pleaded case and amounted to a representation about an obligation to join the union. The trial judge also erred in concluding that action against partnership members could not fall within the scope of 'eligible person' for s 298S(2)(a), and in not applying the reverse onus in s 298V. The appeal was allowed in part with certain findings/penalties to be remitted to the trial judge for further determination.

Court Disposition

Appeal allowed in part, otherwise dismissed. Certain additional declarations made. Matter remitted to trial judge for further consideration as to application of s 298V and any additional penalties.

Orders

  • ['The appeal is allowed in part.' 'The following additional declarations are made as part of Order 1 made on 26 March 2007: (j) By making a representation on 17 February 2004 that in order to work on the Wollongong site each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel was obliged to join the...