Australian Building and Construction Commissioner v Molina

• Jurisdiction: Australia Federal only
• Judgment Date: 29 May 2020
• Neutral Citation: [2020] FCAFC 97
• Date: 29 May 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Molina [2020] FCAFC 97

Appeal from:	Australian Building & Construction Commissioner v Molina (No 2)[2019] FCA 1014
File number:	WAD 383 of 2019
Judges:	BROMBERG, COLVIN AND ABRAHAM JJ
Date of judgment:	29 May 2020
Catchwords:	INDUSTRIAL LAW - appeal from decision of primary judge dismissing application for declarations that respondents contravened s 346(b) and s 348 of the Fair Work Act 2009 (Cth) - whether primary judge erred in approach to construction of s 346 - whether threat of adverse of action - consideration of when a threat to take action will be adverse action - whether primary judge erred in finding that presumption in s 361 does not apply to allegations that a person threatened to take action with intent to coerce - appeal dismissed ; INDUSTRIAL LAW - application by appellant for leave to advance new case on appeal - consideration of nature of conduct and intent required to establish coercion under s 348 - where appellant sought to depart from case run before primary judge - leave refused
Legislation:	Fair Work Act 2009 (Cth) ss 338, 340, 342, 343, 346, 347, 348, 355, 360, 361, 362, 363, 364, Part 3-1 Workplace Relations Act 1996 (Cth) ss 400, 508, 509, 727, 789, 796, 797, 798, 799, 800, 802, 807, 809 Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Cases cited:	Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 Australian Building and Construction Commissioner v Parker[2017] FCA 564 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1125 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 Electrolux Home Products Pty Ltd v Australian Workers' Union[2004] HCA 40; (2004) 221 CLR 309 Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758 Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72; (2016) 245 FCR 39 Esso Australia Pty Ltd v The Australian Workers' Union [2017] HCA 54; (2017) 263 CLR 551 Gett v Tabet[2009] NSWCA 76 Lee v New South Wales Crime Commission[2013] HCA 39; (2013) 251 CLR 196 Mann v Paterson Constructions Pty Ltd [2019] HCA 32 National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; (2002) 117 FCR 114 Newton v Australian Postal Corporation (No 2) [2019] FCA 2192 R v Hush; Ex parte Devanny (1932) 48 CLR 487 R v Leece (1995) 78 A Crim R 531 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172 State of Victoria v Construction, Forestry, Mining and Energy Union[2013] FCAFC 160; (2013) 218 FCR 172 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Zheng v Cai[2009] HCA 52; (2009) 239 CLR 446
Date of hearing:	25 February 2020
Registry:	Western Australia
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	141
Counsel for the Appellant:	Mr JL Bourke QC with Mr ADH Denton
Solicitor for the Appellant:	Herbert Smith Freehills
Counsel for the Respondents:	Mr TJ Dixon with Ms TL Wong
Solicitor for the Respondents:	Construction, Forestry, Maritime, Mining and Energy Union

Table of Corrections
19 March 2021	At [4] the second last sentence amended to correctly read 'Mr Molina then said …'.
	At [116] the last sentence amended to correctly read 'in our view'.
	At [128] 'Mr Buckie' replaced with 'Mr Molina'.
	At [132] 'respondent' in the first line amended to 'respondents'.

ORDERS

		WAD 383 of 2019
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Appellant
AND:	WALTER MOLINA First Respondent ; CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Second Respondent

JUDGES:	BROMBERG, COLVIN AND ABRAHAM JJ
DATE OF ORDER:	29 MAY 2020

THE COURT ORDERS THAT:

1. Appeal dismissed.

2. There be leave to the respondents to apply for any cost orders within 14 days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. On Friday 5 August 2016 there was a meeting of about 500 to 550 workers at what was then the construction site for the Perth Stadium in Burswood (Site). The managing contractor for the Site was Multiplex Engineering and Infrastructure Pty Ltd (Multiplex). Civmec Construction and Engineering Pty Ltd (Civmec) was an independent contractor on the Site engaged by Multiplex to complete structural steel works. On the day before the meeting there had been a fatality on a Multiplex building site in Canberra.

2. Mr McLaughlin, a representative of Multiplex, commenced the meeting. He told those present about the fatality and spoke of the importance of safety. He invited everyone to participate in a minute's silence to acknowledge the passing of the worker. A number of people addressed the meeting encouraging a vote to leave the Site as a sign of respect. Mr Molina, an official with the Construction, Forestry, Maritime, Mining and Energy Union (Union), proposed that all the workers at the site should walk off the job as 'a sign of respect for the fallen worker'. There was a vote by a show of hands and Mr Molina proclaimed the result as a vote to leave the Site.

3. At the end of the meeting, Mr McLaughlin said that the Site was open and operational. Nevertheless, in the next half hour, about 30% of the workers progressively left the Site.

4. Not long after the meeting, Mr Buckie, a representative of Civmec,...