Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446 Citation: Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446

Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v MCCORKELL CONSTRUCTIONS PTY LTD (ACN 094 764 584) and STATE OF VICTORIA

File number: VID 10 of 2013

Judge: BROMBERG J

Date of judgment: 17 May 2013

Catchwords: INDUSTRIAL LAW – s 340(1) of the Fair Work Act 2009 (Cth) – whether respondent took adverse action against employees of independent contractor because those employees had a workplace right – whether the employer of the employees was an "independent contractor" with whom the respondent was "proposing to enter into a contract for services" within the meaning of Item 4 of s 342(1) – meaning of "independent contractor", "proposing to enter" and "contract for services" – whether respondent took adverse action by threatening to refuse to engage independent contractor or make use of its services – meaning of "refuse to engage" – whether adverse action taken because the employees were entitled to the benefit of a workplace instrument – meaning of "entitled to the benefit" of a workplace instrument – consideration of s 361 and onus of proof. Section 343(1) of the Fair Work Act 2009 (Cth) – whether action taken by respondent with intent to coerce a contractor or its employees to exercise their workplace rights to vary an enterprise agreement – meaning of "intent to coerce" – consideration of s 361 and onus of proof – whether conduct illegitimate by reason of an interference with free bargaining – s 550(1) of the FW Act – whether s 361 is applicable to reverse the onus of proof – whether in establishing a contravention by an accessory it is necessary to establish that the accessory had knowledge of the elements of the contravention by the primary contravener.