Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191

FEDERAL COURT OF AUSTRALIA

Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 Appeal from: Australian Building And Construction Commissioner v Auimatagi and Anor [2017] FCCA 1722 Australian Building and Construction Commissioner v Pomare Auimatagi and Anor (No. 2) [2018] FCCA 524

File number: NSD 460 of 2018

Judges: ALLSOP CJ, COLLIER AND RANGIAH JJ

Date of judgment: 13 November 2018

Catchwords: INDUSTRIAL LAW – Fair Work – Work Health and Safety – whether John Holland Pty Limited had a workplace right – whether John Holland Pty Limited exercised a workplace right – whether the appellants engaged in adverse action within the meaning of section 342 and item 7(a) of the Fair Work Act 2009 (Cth) – whether the appellants engaged in adverse action within the meaning of section 342 and item 7(c) of the Fair Work Act 2009 (Cth) – whether the appellants contravened section 340 of the Fair Work Act 2009 (Cth) – the reverse onus provided for in section 361 of the Fair Work Act 2009 (Cth) – whether the first appellant engaged in action in contravention of section 343 of the Fair Work Act 2009 (Cth) – coercion – whether conduct was unlawful, illegitimate or unconscionable – penalties manifestly excessive – appeal allowed

Legislation: Fair Work Act 2009 (Cth), ss 12, 14, 340, 343, 361, 362, 418, 550 Work Health and Safety Act 2011 (Cth), ss 3, 19 Workplace Relations Act 1996 (Cth), ss 4(1) and 420 Workplace Relations Amendment (Work Choices) Act 2005 (Cth)

Cases cited: A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047; 165 IR 94 Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; 351 ALR 379 Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; 249 FCR 458 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157; 267 IR 130 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75 Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality & Miscellaneous Workers' Union [2000] FCA 1793; 106 FCR 148 Commonwealth Bank of Australia v Financial Sector Union of Australia [2006] FCA 1048; 154 IR 467 Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) [2015] FCA 1125; 254 IR 200 Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; 168 CLR 594 Esso Australia Pty Ltd v The Australian Workers' Union [2016] FCAFC 72; 245 FCR 39 Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243; 218 IR 436 Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468; 106 FCR 16 John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; 174 FCR 526 Laing v Construction, Forestry, Mining and Energy Union (No 2) [2006] FCA 750; 155 IR 244 Multicon Engineering Pty Ltd v Federal Airports Corporation [1997] NSWCA 214; 47 NSWLR 631 National Union of Workers v Qenos Pty Ltd [2001] FCA 178; 108 FCR 90 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2001] FCA 456; 109 FCR 378 State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; 218 FCR 172 TAL Life v Shuetrim [2016] NSWCA 68; 91 NSWLR 439 Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754 Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223; 179 IR 44 Woolmington v Director of Public Prosecutions [1935] UKHL 1; AC 462