Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83 File number: VID 167 of 2016

Judge: BROMBERG J

Date of judgment: 13 February 2018

Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) ("FW Act"), ss 346(b), 347, 348 – where an officer of an industrial association identified deficiencies in the facilities for workers at a workplace – where workers, following a meeting with officers of the industrial association, took industrial action when the employer did not improve the facilities at the workplace – whether the identification of deficiencies is to be understood as a request to improve the facilities – whether the failure by the employer to accede to the request of the industrial association amounted to engaging in industrial activity under ss 347(b)(iv) or 347(b)(v) for the purposes of ss 346(b) and 348 – whether refusal of an industrial claim can be said to be a refusal to "represent or advance the views, claims or interests" of the industrial association for the purposes of s 347(b)(v) – refusal of a claim is an action of a different character to refusing to "represent or advance the views, claims or interests" of the industrial association – consideration of preferred construction of s 347(b)(iv) of the FW Act – where context and purpose of provision suggest that ss 347(b)(i)–(v) directed at the protection of freedom of association – reference to "lawful request … or requirement" to be read as request or requirement to associate in or with the industrial association – an industrial request made by an industrial association to an employer lacks the necessary nexus to freedom of association to fall within the scope of s 347(b)(iv) – contrary view in Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758 and Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167 not plainly wrong, single judge bound to follow – elements of ss 346(b) and 348 made out against officers – liability of industrial association established via s 793 STATUTORY INTERPRETATION – Acts Interpretation Act 1901 (Cth) s 15AB – the circumstances in which reference may be made to extrinsic materials, including an explanatory memorandum