Unions and agreements - cases wrap

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Unions and agreements - cases wrap

Practical approach and prohibited content; Secondary boycott costly for CFMEU; ETU wins battle over CFMEU for Federal coverage; Building industry tribunal can exclude particular lawyers.

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Practical approach and prohibited content; Secondary boycott costly for CFMEU; ETU wins battle over CFMEU for Federal coverage; Building industry tribunal can exclude particular lawyers.

'Practical approach' and prohibited content

Rejecting the employer's objections to the union's ballot application, Commissioner Harrison in the AIRC said he was not persuaded the union deliberately or consciously advanced claims for prohibited content.

The AIRC held that the proposed question contained in the application is one which is expressed in plain English and can be readily and clearly understood by employees.

The Commission noted:

'Mr Vines [union official] is not a lawyer and I accept that his subjective belief was that the AMWU was "not providing prohibitive [sic] content and putting anyone at risk" and that as the responsible union official he was genuinely trying to reach a workplace agreement within the constraints placed by the Act and the Regulations.'

AMWU and Amcor Packaging - PR974835 (6 December 2006)

Secondary boycott costly for CFMEU

The union admitted it was liable for the unlawful conduct engaged in by the branch Assistant Secretary and two organisers in April and November 2004 at a particular building site.

The Federal Court ordered the CFMEU to pay $115,000 in penalties and costs for breaching the Trade Practices Act's secondary boycott provisions. The union had delayed a concrete pour and picketed at the construction site.

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2006] FCA 1730 (12 December 2006)

ETU wins battle over CFMEU for Federal coverage

A Full Bench of the AIRC dismissed an appeal by the Federal CFMEU finding that the Commission's original decision was correct that any order not maintaining the AWUEQ's exclusive rights would be inconsistent with the clear statutory purpose of carrying over representation rights under State laws into the new Federal system.

Workplace Relations Regulation 6.2.4(2) requires the AIRC to issue demarcation orders 'to the same effect' as State orders.

The Full Bench stated:

'In our view the power in [Regulation 6.2.4] must be seen as a provision to facilitate a shift from one jurisdiction to another. On the CFMEU’s approach such orders could only bind entities which had been bound by a relevant State demarcation order and had subsequently become transitionally registered associations or organisations … '

Construction, Forestry, Mining and Energy Union re Orders re representation rights of transitionally registered associations of employees in re The Australian Workers’ Union of Employees, Queensland and Federated Engine Drivers’ and Firemen's Association of Australasia Queensland Branch

Building industry tribunal can exclude particular lawyers

The Federal Court held that the Australian Building and Construction Commissioner has the power to exclude a particular legal practitioner from acting for a person subject to examination by the Commission.

There was a proper basis for the exercise of the discretion to make such a direction in the view of the Federal Court. However, Justice Besanko found that the ABCC's Deputy Commissioner went beyond power when he extended that exclusion to the employee's choice of lawyer to matters outside the ABCC's investigation.

The ABCC had noted:

'Because of [the lawyer] Ms Boots’ attendance at the previous examination, Ms Boots is aware of the topics and issues that are likely to be covered by counsel assisting in questions and how counsel assisting is likely to proceed. Ms Boots is aware of the answers given by the previous witness ... There is accordingly a real risk that the evidence of Mr Bonan may be influenced by the evidence provided by the previous witness. In my experience in this industry, it is very important that witnesses give evidence unaffected by any evidence given by other witnesses.'

Bonan v Hadgkiss (Deputy Australian Building and Construction Commissioner) [2006] FCA 1334 (12 October 2006)

[Note: the decision noted above was confirmed on appeal.]

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