Cruse v Construction, Forestry, Mining & Energy Union [2008] FCA 1267

Cruse v Construction, Forestry, Mining & Energy Union [2008] FCA 1267

Mr Fry contravened s 298SC(c) by falsely representing that Mr Anton had to be a CFMEU member to work on the construction side of the Hamilton site, and contravened s 170NC by telling Mr Anton that he could not work there without an enterprise bargaining agreement, thereby exerting pressure that practically negated choice. The CFMEU was vicariously liable for those contraventions. The alleged BCII Act contraventions by Mr Bannister and Mr Hoffman were not proved because the evidence did not establish that they organised or threatened action with intent to coerce Roche; the matter appeared to involve grouters raising a work allocation dispute with management, and the possibility of...

Jurisdiction
Australia
Judgment Date
22 August 2008
Procedural Posture
Industrial Law Proceeding Alleging Contraventions of the Workplace Relations Act 1996 (cth) and the Building and Construction Industry Improvement Act 2005 (cth) / Reasons for Judgment After Hearing on Liability; Proceeding Adjourned for Directions and Penalty Submissions
Outcome
Breaches of ss 298SC(c) and 170NC of the Workplace Relations Act 1996 (Cth) by Mr Fry were established and the CFMEU was vicariously liable; alleged breaches of the Building and Construction Industry Improvement Act 2005 (Cth) by Mr Bannister and Mr Hoffman were not established and would in due course be dismissed;...
Legal Topics
['certified Agreements' 'enterprise Bargaining Agreements' 'union Coercion' 'false or Misleading Representation About Obligation to Join an Industrial Association' 'building Contractor Engagement and Allocation of Responsibilities' 'meaning of Other Action in S 170 NC of the Workplace Relations Act 1996 (cth)']
['industrial Law'] ['certified Agreements' 'enterprise Bargaining Agreements' 'union Coercion' 'false or Misleading Representation About Obligation to Join an Industrial Association' 'building Contractor Engagement and Allocation of Responsibilities' 'meaning of Other Action in S 170 NC of the Workplace Relations Act 1996 (cth)']

Case Brief

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Procedural Posture

Industrial Law Proceeding Alleging Contraventions of the Workplace Relations Act 1996 (cth) and the Building and Construction Industry Improvement Act 2005 (cth) / Reasons for Judgment After Hearing on Liability; Proceeding Adjourned for Directions and Penalty Submissions

Legal Issues

  1. 1 ['Whether Mr Fry made a false or misleading representation to Mr Anton about an obligation to join the CFMEU contrary to s 298SC(c) of the Workplace Relations Act 1996 (Cth).' 'Whether Mr Fry took other action with intent to coerce Mr Anton to make an enterprise bargaining agreement contrary to s 170NC of the Workplace Relations Act 1996 (Cth).' "Whether the CFMEU was vicariously liable for Mr Fry's contraventions under ss 298B(2)(b) and 349 of the Workplace Relations Act 1996 (Cth)." 'Whether Mr Bannister or Mr Hoffman organised or took action, or threatened to organise or take action, with intent to coerce Roche in relation to engaging Mr Anton or allocating duties or responsibilities to him contrary to s 43(1) of the Building and Construction Industry Improvement Act 2005 (Cth).']

Ratio Decidendi

Mr Fry contravened s 298SC(c) by falsely representing that Mr Anton had to be a CFMEU member to work on the construction side of the Hamilton site, and contravened s 170NC by telling Mr Anton that he could not work there without an enterprise bargaining agreement, thereby exerting pressure that practically negated choice. The CFMEU was vicariously liable for those contraventions. The alleged BCII Act contraventions by Mr Bannister and Mr Hoffman were not proved because the evidence did not establish that they organised or threatened action with intent to coerce Roche; the matter appeared to involve grouters raising a work allocation dispute with management, and the possibility of...

Court Disposition

Breaches of ss 298SC(c) and 170NC of the Workplace Relations Act 1996 (Cth) by Mr Fry were established and the CFMEU was vicariously liable; alleged breaches of the Building and Construction Industry Improvement Act 2005 (Cth) by Mr Bannister and Mr Hoffman were not established and would in due course be dismissed;...

Orders

  • ['The proceeding is adjourned to a directions hearing at 9.30 am on 4 September 2008.']