Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56 Citation: Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56

Appeal from: Stuart-Mahoney v CFMEU & Anor (No 2) [2008] FMCA 1015 and Stuart-Mahoney v CFMEU & Nor (No 3) [2008] FMCA 1435

Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and JASON DEANS v KAREN STUART-MAHONEY

File number(s): VID 957 of 2008

Judge: RYAN J

Date of judgment: 8 February 2011

Catchwords: INDUSTRIAL LAW – appeal from Federal Magistrates Court – civil penalty proceedings – whether there was action or threat of action having prejudicial effect on employment – whether onus of negativing proscribed reason reversed by s 809 of the Workplace Relations Act 1996 (Cth) EVIDENCE – application of s 140 of the Evidence Act 1995 (Cth) – whether pleaded allegation sufficiently established by the evidence – whether inference of contravening conduct more probable than other available inferences PECUNIARY PENALTIES – appeal from Federal Magistrates Court – whether pecuniary penalties imposed for contravention of ss 789 and 790 of the Workplace Relations Act 1996 (Cth) were excessive

Legislation: Workplace Relations Act 1996 (Cth) ss 789, 790, 797, 809 Evidence Act 1995 (Cth) s 140 Building, Construction and Industry Improvement Act 2005 (Cth)

Cases cited: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; 110 ALR 449 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 Qantas Airways Limited v Gama (2008) 167 FCR 537 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Jones v Dunkel (1959) 101 CLR 298 Tabet v Gett (2010) 240 CLR 537 Briginshaw v Briginshaw (1938) 60 CLR 336 Cabal v United Mexican States (2001) 108 FCR 311 Hadgkiss v CFMEU (2008) 166 FCR 376 Fox v Percy (2003) 214 CLR 118 Construction, Forestry, Mining, Energy Union v Safety Glass Pty Ltd [2010] FCA 989 Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977 Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308 Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 Cozadinos v Construction, Forestry, Mining and Energy Union [2010] FCA 48 Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426; (2008) 177 IR 61 House v The King (1936) 55 CLR 499 Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2010) 262 ALR 417 A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Hardwick v Australian Manufacturing Workers' Union [2010] FCA 818; 198 IR 312 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Dinsdale v The Queen (2000) 202 CLR 321