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 Introduction

Case: Australian Building & Construction Commissioner v Molina (No 2) [2019] FCA 1014

Can the threat of an adverse action be in breach of the General Protects provisions of the Fair Work Act? The Full Bench of the Federal Court says no and leaves the door open for the Australian Building & Construction Commissioner to pay the union’s costs.

The Australian Building & Construction Commissioner (ABCC) takes the matter to the Federal Court and loses. It then appeals to the Full Court…and fails (again).

Background

Following the death of a worker on a building site a CFMMEU organiser addressed the workers at the site. The union’s organiser called a meeting of the site’s 500 workers and called for a minute’s silence as “a sign of respect for the fallen worker”. A number of workers spoke at the meeting and stated that the site should close for 24 hours out of respect for the deceased worker. There was a vote by a show of hands and the union organiser proclaimed the result as a vote to leave the site.

The union organiser put this to the meeting and about 30% of workers “trickled” off the site.

[Ed: In years gone past the site would have been shut down by the union – no exceptions].

The company’s site representative then called a meeting, declaring the site “open”, ie the workers should continue their duties.

The company representative and the union organiser then had an exchange:

Union organiser: “You need to send your guys home. Have some respect, send your guys home.”

Company representative responded by saying that the union organiser knew he could not do that.

Union organiser: “If you don’t send your guys home, you can expect a picket line on Monday – if you send your guys back up to work”.

Storm in a teacup?

The company representative did not take the conversation personally and did not get upset about the conversation. He was not threatened or concerned by what had been said and he continued to keep his workers on the site for another two hours or so. Eventually, the workers left the Site because crane drivers were not working. In the result, workers returned to the Site the next day and there was no picket line arranged at the Site the following Monday.

Prosecution

In the above circumstances, proceedings were brought by the (ABCC) against the union’s organiser and the Union alleging two contraventions under the Fair Work Act 2009 (Cth), namely that:

  1. contrary to s 346(b), they threatened to take adverse action against Civmec (being arranging a picket line at the Stadium site) because Civmec did not comply with a lawful request by the Union (being to send its workers home as a sign of respect) (adverse action claim); and
  2. contrary to s 348, they threatened to take action against Civmec (being arranging a picket line at the Stadium site) with intent to coerce Civmec to comply with a lawful request by the Union (being to send its workers home as a sign of respect) (coercion claim).

The first case (fail)

The primary judge found that there had been a threat to put a picket line in place, but determined there had been no threat of adverse action in contravention of s 346 because it had not been proved that there could have been prejudice to Civmec if there had been a picket line. The primary judge also found that intent to coerce had not been established and for that reason there was no contravention of s 348. In reaching the latter conclusion the primary judge found that the statutory presumption expressed in s 361 of the Fair Work Act (to the effect that action alleged to be taken with a particular intent was presumed to be taken with that intent unless proved otherwise) did not apply.

As a result, the proceedings were dismissed. The ABCC the appealed.

The issues in the appeal

In the appeal, the ABCC raises three issues (including an alternative argument as to the third). A significant part of the answer raised by the respondents to the appeal is that the ABCC now seeks to depart from the way it presented its case to the primary judge. The competing positions of the parties on the three issues are as follows:

  • First, on the adverse action claim, the ABCC says that the primary judge erred by requiring it to establish objectively that the threat, if implemented, would have had the effect of prejudicing Civmec. The ABCC says that the correct approach was to ask whether prejudice to Civmec was threatened by what was said. It says that if that approach had been adopted then, on the findings of the primary judge, the contravention of s 346 was established.
  • The second issue concerns the coercion claim. The ABCC says that the statutory presumption in s 361 applies and the primary judge erred by finding it did not apply. The ABCC says that if the presumption applies then the contravention of s 361 was established because the ABCC’s version of events was accepted and the burden imposed by s 361 was not discharged by the union’s organiser or the Union.
  • The third issue also concerns the coercion claim. The ABCC says that on the proper construction of s 348 there is no requirement that the coercion must negate any choice by means of an action that is unlawful, illegitimate or unconscionable and the many authorities to that effect are wrong. It says that if the primary judge had applied what it contends to be the proper approach then the contravention of s 348 was established on the findings by the primary judge. It accepts that it ran the case before the primary judge on the basis that there was a requirement that coercion involves negating any choice by an action that is unlawful, illegitimate or unconscionable. However, it says that there is no respect in which the case below might have been run differently if that requirement did not apply. In the alternative, the ABCC says that if the coercion must be by action that is unlawful, illegitimate or unconscionable then the primary judge erred in not finding that to be the case.

Full Court findings

Section 346 provides, relevantly for present purposes, that a person “must not take adverse action against another person because the other person … does not engage … in industrial activity”. The meaning of the phrase “engages in industrial activity” is defined in s 347. Amongst other things, it is defined to include an instance where a person does not comply with a lawful request made by an industrial association.

So, a person must not take adverse action against another person because that person does not comply with a lawful request made by an industrial association.

First, the Court found, a threat to take action will be adverse action if it is a threat to bring about the effect of prejudicing an independent contractor in relation to a contract for services. On such an approach, the effect must form part of that which is threatened.

Second, if that were the way the provision operated then it would be necessary to consider what will often be an hypothetical either because the threat has the desired effect and it does not need to be carried out or the threat is ineffective but, for some reason, the threat is not implemented. Further, on the second construction, issues may arise as to the degree of likelihood of the threatened conduct having the required effect that is sufficient to establish a contravention.

The third possibility is that a threat will be adverse action if it is intended to have the consequence of prejudicing an independent contractor in relation to a contract for services. On such an approach the party making the threat must be shown to have intended the effect. This third alternative can be readily discounted because it sits inconsistently with the ordinary meaning of a threat. The expression of an intention to do harm is a threat.

The threat must be real?

Therefore, the feasible alternative constructions appear to be the first and the second. In many instances, the distinction between them may not be of great significance because a threat is likely to be made with a particular consequence being both part of the threat (expressly or impliedly) and plainly in view. However, the second alternative would open up the possibility that an effect that was not within the purview of the threatening party might give rise to a contravention. It would attribute to the threatening party a responsibility for likely effects that may not have been in the party’s contemplation when making the threat (and in that sense were not threatened by that party). Such a construction would be inconsistent with the ordinary meaning of a threat which is to engender fear by conduct that, viewed objectively, conveys an intention to do something that would be harmful from the perspective of the person being threatened. In ordinary parlance, a threat identifies the harm that is threatened.

Conclusion

On my reading, to be upheld, the ABBC would need to provide that the union had intended to carry out the adverse action, and that there was “fear” involved.

It will be interesting to see if the union pursues costs, as the ABCC has been relentless in past dealings with this union.