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

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