Australian Building and Construction Commissioner v Ingham [2020] FCA 1632

Federal Court of Australia

Australian Building and Construction Commissioner v Ingham [2020] FCA 1632 File number: QUD 138 of 2019

Judgment of: RANGIAH J

Date of judgment: 12 November 2020

Catchwords: INDUSTRIAL LAW – alleged contraventions of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – whether workers engaged in unlawful industrial action – where workers refused to perform work until colleague reinstated – whether workers entitled to not work in any event under relevant award due to inclement weather – whether respondents organised unlawful industrial action – whether respondents were knowingly concerned in unlawful industrial action – contraventions not established INDUSTRIAL LAW – alleged contraventions of s 348 of the Fair Work Act 2009 (Cth) – whether workers engaged in action – where applicant's pleading relied on higher threshold of "industrial action" – whether applicant should be permitted to rely on lower threshold not pleaded – contraventions not established

Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 5, 6, 7, 46, 61F, 81, 92, 94 and 95 Corporations Act 2001 (Cth) s 1305 Evidence Act 1995 (Cth) ss 69, 128 and 140 Fair Work Act 2009 (Cth) ss 12, 19, 340, 343, 347, 348, 360, 361, 417, 546 and 793

Cases cited: Adler v Australian Securities and Investments Commission; Williams v Australian Securities and Investments Commission (2003) 179 FLR 1; [2003] NSWCA 131 Anderson v Australian Securities and Investments Commission [2013] 2 Qd R 401 Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632 Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) (2017) 268 IR 178 Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (2020) 297 IR 151 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) (2018) 260 FCR 564 Australian Building and Construction Commissioner v Construction, Forestry, Mining, and Energy Union (2017) 267 IR 130 Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 Australian Building and Construction Commissioner v Huddy [2017] FCA 739 Australian Building and Construction Commissioner v Molina (2020) 295 IR 414 Blatch v Archer (1774) 98 ER 969 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192 Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 Esso Australia Pty Ltd v The Australian Workers' Union (2015) 253 IR 304 Esso Australia Pty Ltd v The Australian Workers' Union (2016) 245 FCR 39 Esso Australia Pty Ltd v The Australian Workers' Union (2017) 263 CLR 551 Fabre v Arenales (1992) 27 NSWLR 437 Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16 G v H (1994) 181 CLR 387 Giorgianni v The Queen (1985) 156 CLR 473 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 Henderson v Queensland (2014) 255 CLR 1 HIH Insurance Limited (in liquidation) v Adler [2007] NSWSC 633 Jones v Dunkel (1959) 101 CLR 298 Oran Park Motor Sport Pty Limited v Fleissig [2002] NSWCA 371 Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (2019) 286 IR 52 Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 Yorke v Lucas (1985) 158 CLR 661