Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167 File number: VID 212 of 2016

Judge: JESSUP J

Date of judgment: 1 March 2017

Catchwords: CONSTITUTIONAL LAW – Inconsistency between State and federal statutes – Federal statute proscribing the taking of industrial action – State statute empowering health and safety representative of workers to direct that work cease – Whether federal statute left room for the valid operation of State health and safety laws. INDUSTRIAL LAW – Industrial action – Statutory definition – Exclusion of action by employees based on reasonable concern about imminent risk to own health or safety – Whether such concern present in fact. INDUSTRIAL LAW – Industrial action – Whether organised by union representatives – Action in contravention of statutory prohibition – Whether representatives aided, abetted, counselled, procured or induced or were knowingly concerned in contraventions. INDUSTRIAL LAW – Fair Work Commission – Interim orders to stop industrial action – Duration of operation of orders – Extent of Commission's power in face of direct statutory provision. INDUSTRIAL LAW – Adverse action – Industrial activity – Failure to comply with request of industrial association – Whether extends to situation in which employer refuses to comply with request of trade union – Failure to pay for lost time – Whether adverse action taken because of engagement in industrial action – Scope of statutory provision reversing onus of proof in adverse action case. INDUSTRIAL LAW – Industrial action – Coercion – Whether intention to negate choice.