P G & L J Smith Plant Hire Pty Ltd v Lanskey Constructions Pty Ltd [2004] FCA 1618

P G & L J Smith Plant Hire Pty Ltd v Lanskey Constructions Pty Ltd [2004] FCA 1618

The determining mind for Lanskey's decision to terminate the contract was that of Mr Rowland, who was not actuated by Mr Smith's non-membership of the CFMEU but by concerns over inadequate paperwork and an unsatisfactory certificate of currency. There was no arrangement or understanding made with the union such that s 45E of the TPA was contravened. The application of the WRA could not extend to termination of the contractual relationship with Smith P/L for Mr Smith's non-membership because Smith P/L, as a company, cannot be a union member.

Parties
Applicant: P G & L J Smith Plant Hire Pty Ltd; Applicant: Peter Glanville Smith; Applicant: Nigel Hadgkiss; Respondent: Lanskey Constructions Pty Ltd; Respondent: Construction, Forestry, Mining and Energy Union; Respondent: Peter Primmer; Respondent: Michael Lane
Jurisdiction
Australia
Judgment Date
17 December 2004
Procedural Posture
Civil / Trial Judgment
Outcome
proceeding dismissed
Legal Topics
Freedom of Association, Termination of Independent Contractor for Union Reasons, Discriminatory Conduct, Arrangement to Prevent Acquisition of Services
Industrial Law Trade Practices Freedom of Association Termination of Independent Contractor for Union Reasons Discriminatory Conduct Arrangement to Prevent Acquisition of Services

Case Brief

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Parties

P G & L J Smith Plant Hire Pty Ltd

Applicant

Peter Glanville Smith

Applicant

Nigel Hadgkiss

Applicant

Lanskey Constructions Pty Ltd

Respondent

Construction, Forestry, Mining and Energy Union

Respondent

Peter Primmer

Respondent

Michael Lane

Respondent

Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 Whether respondents contravened ss 298K(2) or 298S(2) of the Workplace Relations Act 1996 (Cth) or s 45E of the Trade Practices Act 1974 (Cth)
  2. 2 Whether termination of contract or prejudicial alteration was for a prohibited reason related to non-membership of union
  3. 3 Whether there was discriminatory conduct in relation to eligible person

Ratio Decidendi

The determining mind for Lanskey's decision to terminate the contract was that of Mr Rowland, who was not actuated by Mr Smith's non-membership of the CFMEU but by concerns over inadequate paperwork and an unsatisfactory certificate of currency. There was no arrangement or understanding made with the union such that s 45E of the TPA was contravened. The application of the WRA could not extend to termination of the contractual relationship with Smith P/L for Mr Smith's non-membership because Smith P/L, as a company, cannot be a union member.

Court Disposition

proceeding dismissed

Orders

  • The proceeding be dismissed.
  • The costs of the proceeding be reserved.