Construction, Forestry, Mining and Energy Union v Clarke

• Jurisdiction: Australia Federal only
• Judgment Date: 08 June 2007
• Neutral Citation: [2007] FCAFC 87
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87

INDUSTRIAL LAW – industrial action by workforce contrary to greenfields certified agreement – whether Union and its representatives were party to, or concerned in, industrial action by attending workforce meetings and advising against it – whether Union and representatives liable for breach of dispute resolution procedures of certified agreement

INDUSTRIAL LAW – whether conduct of job representative elected pursuant to a certified agreement attributable to Union

AGENCY – whether job representative elected pursuant to a certified industrial agreement agent for Union

WORDS AND PHRASES – “party to, or concerned in”

Federal Court ofAustraliaAct 1976 (Cth), s 25(5)

Workplace Relations Act 1996 (Cth), ss 4(8), 84, 127, 170LL, 170LT, 170LY, 170LZ, 170M, 170MN, 178, 347

Construction, Forestry, Mining and Energy Union v Clarke[2006] FCA 245; 149 IR 224 reversed

Construction, Forestry, Mining and Energy Union v Clarke (2005) 144 FCR 226 related

Construction, Forestry, Mining and Energy Union v Clarke(2007) 156 FCR 291 related

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation[1983] 1 NSWLR 1 applied

Ashbury v Reid [1961] WAR 49 cited

Australian Workers’ Union v Stegbar Australia Pty Ltd[2001] FCA 367 cited

Briginshaw v Briginshaw(1938) 60 CLR 336 cited

Browne v Dunn(1893) 6 R 67 (HL) applied

Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employ Union (No 2)(1987) 15 FCR 64 considered

Coulton v Holcombe(1986) 162 CLR 1 applied

Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union(2002) 117 FCR 588 cited

Flower & Hart v White Industries (Qld) Pty Ltd(1999) 87 FCR 134 applied

Giorgianni v The Queen(1985) 156 CLR 473 applied

MWJ v The Queen(2005) 80 ALJR 329; 222 ALR 436 applied

R v Tannous (1987) 10 NSWLR 303 cited

Waterways Authority v Fitzgibbon(2005) 221 ALR 402; (2005) 79 ALJR 1816 applied

Zhang v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCAFC 30 applied

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICHAEL POWELL AND WALTER VINICIO MOLINA v MARCUS THOMAS CLARKE

WAD 88 OF 2006

TAMBERLIN, GYLES AND GILMOUR JJ

8 JUNE 2007

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIADISTRICT REGISTRY	WAD 88 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant MICHAEL POWELL Second Appellant WALTER VINICIO MOLINA Third Appellant
AND:	MARCUS THOMAS CLARKE Respondent

JUDGES:	TAMBERLIN, GYLES AND GILMOUR JJ
DATE OF ORDER:	8 JUNE 2007
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal against the judgment of 17 March 2006 be allowed and the orders of 17 March 2006 be set aside.

2. In lieu thereof, the appeal from the orders of the Industrial Magistrate’s Court of Western Australia of 28 April 2005 be allowed and the orders of 28 April 2005 be set aside.

3. The proceeding in the Industrial Magistrate’s Court of Western Australia be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 88 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Appellant MICHAEL POWELL Second Appellant WALTER VINICIO MOLINA Third Appellant
AND:	MARCUS THOMAS CLARKE Respondent

JUDGES:	TAMBERLIN, GYLES AND GILMOUR JJ
DATE:	8 JUNE 2007
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 This case concerns accessorial liability in relation to breaches of provisions of the Workplace Relations Act 1996 (Cth) as it stood in 2004 (“the Act”) relating to a greenfields certified agreement. On 17 March 2006 a judge of the Court dismissed an appeal from judgment and orders of the Industrial Magistrate’s Court of Western Australia imposing penalties upon the Construction, Forestry, Mining and Energy Union (“the Union”), Michael Powell and Walter Vinicio Molina for breach of s 170MN of the Act in engaging in industrial action contrary to the terms and conditions of a certified agreement (Construction, Forestry, Mining and Energy Union v Clarke[2006] FCA 245; 149 IR 224). Notwithstanding that the Chief Justice had determined pursuant to s 25(5) of the Federal Court of Australia Act 1976 (Cth) that the appellate jurisdiction of the Court be exercised by a single judge (Construction, Forestry, Mining and Energy Union v Clarke (2005) 144 FCR 226), it has been held, in this case, that there is an appeal from that judge to the Full Court (Construction, Forestry, Mining and Energy Union v Clarke(2007) 156 FCR 291).

2 On 26 May 2004 the Australian Industrial Relations Commission certified an agreement between Barclay Mowlem Construction Ltd (“the Company”) and the Union entitled “Barclay Mowlem Construction Ltd, Thornlie Railway Station and Bridges – Structural Work Project Certified Agreement 2004–2005” (“the Certified Agreement”) pursuant to s 170LT of the Act. The Certified Agreement came into operation from 26 May 2004 and was to remain in force until 1 July 2005. To be certified, the Agreement had to pass a “no disadvantage” test (s 170LT(2); Pt VIE). The Certified Agreement was what was described as a “greenfields agreement” made pursuant to s 170LL of the Act. In the case of the establishment of a new business, an agreement can be made between an employer and a union prior to the employment of any of the persons to be employed (s 170LL(1)). Thus, in addition to the Company and the Union, all employees of the Company who were engaged on the Thornlie rail extension structural work project in the classifications detailed in the Certified Agreement (not necessarily all the workers on the site) were bound by the Certified Agreement (s 170M). Clause 1.6 of the Certified Agreement was as follows:

“1.6NO EXTRA CLAIMS

This Agreement is made in full and final settlement of all claims in relation to this project and the parties shall not make any further claims for the period of operation of the Agreement. The parties agree that the wages, allowances and employment conditions set out in this Agreement cover all circumstances, conditions and disabilities associated, with the Project.”

The Certified Agreement operated to the exclusion of any other Federal or State awards, orders or agreements that would otherwise apply had it not been for the making of the Certified Agreement (cl 1.5; s 170LY, s 170LZ).

3 There was an elaborate dispute resolution procedure established by cl 4.5 of the Certified Agreement, the preamble to which was as follows:

“Where any questions, disputes or difficulties arise, the provisions of this Section shall be applied in resolving the matters, Provided always that work shall continue in the usual manner without loss of time or wages and without bans or limitations so as to allow the steps below to be followed:”

A seven step procedure was laid down escalating the level of resolution step-by-step until reference to the Australian Industrial Relations Commission. It was to be noted that there was a role in steps 1–4 for the elected job representative to, in effect, accompany the employee who raises the issue with representatives of the Company. The organiser of the Union comes in at step 5 and the Union State Secretary at step 6.

4 The job representative is provided for by cl 7.3 which is in the following terms:

“7.3 JOB REPRESENTATIVES

The Company supports the continuing role for the job representative when requested by an employee in handling of questions, disputes or difficulties in accordance with subsection 4.5 Grievance Resolution Procedure.

Any employee elected to the position of job representative shall be recognised as such by the Company and will have reasonable work time, when mutually convenient, to undertake matters related to employees of the Company, when so required by those employees, in accordance with the procedure outlined in subsection 4.5 of this Agreement.

The Company shall ensure that the Job representative is provided with adequate resources to perform their representative role.”

5 Section 170MN (so far as relevant) was as follows:

“170MN Industrial action etc. must not be taken until after nominal expiry date of certain agreements and awards

(1) From the time when:

(a) a certified agreement; or

(b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period);

comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.

(2) For the purposes of subsection (1), the following are covered by this subsection:

(a) any employee whose employment is subject to the agreement or award;

(b) an organisation of employees that is bound by the agreement or award;

(c) an officer or employee of such an organisation acting in that capacity.”

6 Section 178 (so far as is relevant) was in the following terms:

“178 Imposition and recovery of penalties

(1) Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a...