Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168 File number: VID 261 of 2016

Judge: JESSUP J

Date of judgment: 1 March 2017

Catchwords: INDUSTRIAL LAW – Industrial action – Stop-work meetings and walk-offs on construction sites – Whether industrial action engaged in by employees – Whether meetings and walk-offs organised by union organisers – Whether contraventions arose out of same course of conduct – Whether organisers liable as accessories – Whether organisers knew that employees were covered by enterprise agreement – Whether organisers' conduct attributed to union. INDUSTRIAL LAW – Adverse action – Industrial activity – Right of entry – Union organisers entered construction sites in defiance of builder's right of entry procedure – Whether implied request or requirement by union that procedures be relaxed or not applied. PRACTICE AND PROCEDURE – Disharmony between pleadings and outline of submissions – Whether unfair on respondents for applicant to depart from outline.

Legislation: Fair Work Act 2009 (Cth) ss 19, 342, 346, 347, 348, 363, 417, 474, 550, 557, 793

Cases cited: Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) [2017] FCA 167 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 QR Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2010) 204 IR 142 Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 Yorke v Lucas (1985) 158 CLR 661