Australian Building and Construction Commissioner v Huddy [2017] FCA 739

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Huddy [2017] FCA 739 File number: NTD 33 of 2014

Judge: WHITE J

Date of judgment: 30 June 2017

Catchwords: INDUSTRIAL LAW – proceedings brought against employees who stopped work during the currency of an enterprise agreement, a union organiser and the union; respondents alleged to have contravened s 417 of the Fair Work Act 2009 (Cth) (FW Act) by engaging in industrial action while the enterprise agreement was in force – union organiser and union delegate (the union representatives) and, by reason of their conduct, the union, alleged to have organised the industrial action – consideration of the meaning of "organise" – found that the union representatives had not organised the industrial action – found that the employees had engaged in industrial action. INDUSTRIAL LAW – employee respondents alleged to have contravened s 343 of the FW Act by engaging in industrial action with the intent to coerce their employer not to exercise a workplace right or to exercise it inconsistently with the enterprise agreement – union representatives alleged to have organised the action with the same intention – consideration of the meaning of "intent to coerce" – consideration of the reverse onus provision in s 361 – consideration of each respondent's intention in withholding labour – held that all but one employee respondent had not discharged the s 361 onus and thus are taken to have engaged in the action with a proscribed intention – found that union representatives did not organise the action. INDUSTRIAL LAW – employee respondents alleged to have contravened s 348 of the FW Act by taking action to coerce their employer to engage in industrial activity by complying with their lawful requests – union representatives alleged to have organised the action – the reasoning that applied to s 343 equally applied to s 348 – the employee respondents did not discharge the s 361 onus – found that they had engaged in action with a proscribed intention – found that union representatives had not organised the industrial action and had not, by reason of s 362, contravened s 348. INDUSTRIAL LAW – alleged contravention by employee respondents of s 50 – consideration of dispute resolution clause in the enterprise agreement – held that the employees had contravened a term of the enterprise agreement. INDUSTRIAL LAW – alleged involvement by union representatives in the contraventions by the employee respondents of ss 50, 343, 348 and 417 of the FW Act – consideration of the principles of accessorial liability under s 550 of the FW Act – held that union representatives were involved in contraventions of the provisions by each respondent. INDUSTRIAL LAW – admitted allegation that union organiser contravened s 500 of the FW Act.