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

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 of Australia Act 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