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Part 2—Coercion and discrimination

Part 2 Coercion and discrimination

Division 1 Civil penalties

51   Action to which this Part applies

                   This Part applies to the following action:

                     (a)  action taken by a constitutionally-covered entity;

                     (b)  action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally-covered entity;

                     (c)  action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally-covered entity:

                              (i)  to take, or not take, particular action in relation to another person; or

                             (ii)  to threaten to take, or not take, particular action in relation to another person.

52   Coercion relating to allocation of duties etc. to particular person

                   A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

                     (a)  employ, or not employ, a particular person as a building employee; or

                     (b)  engage, or not engage, a particular independent contractor as a building contractor; or

                     (c)  allocate, or not allocate, particular duties or responsibilities to a building employee or building contractor; or

                     (d)  designate a building employee or building contractor as having, or not having, particular duties or responsibilities.

Note 1:       See also Division 2 (reason for action and coercion).

Note 2:       Grade A civil penalty.

53   Coercion relating to superannuation

             (1)  A person must not:

                     (a)  organise or take, or threaten to organise or take, any action; or

                     (b)  refrain, or threaten to refrain, from taking action;

with intent:

                     (c)  to coerce a building employee to nominate a particular superannuation fund or scheme to receive the employee’s superannuation contributions; or

                     (d)  to coerce a building employer to pay to a particular superannuation fund or scheme the employer’s superannuation contributions for building employees.

Note 1:       See also Division 2 (reason for action and coercion).

Note 2:       Grade A civil penalty.

             (2)  Subsection (1) does not apply to protected industrial action.

54   Coercion of persons to make, vary, terminate etc. enterprise agreements etc.

             (1)  A person must not:

                     (a)  organise or take, or threaten to organise or take, any action; or

                     (b)  refrain, or threaten to refrain, from taking any action;

with intent to coerce another person, or with intent to apply undue pressure to another person, to agree, or not to agree:

                     (c)  to make, vary or terminate a building enterprise agreement; or

                     (d)  to approve any of the things mentioned in paragraph (c).

Note 1:       See also Division 2 (reason for action and coercion).

Note 2:       Grade A civil penalty.

             (2)  Subsection (1) does not apply to protected industrial action.

             (3)  An employer must not coerce, or attempt to coerce, an employee of the employer in relation to who is to be, or is not to be, the employee’s bargaining representative for a proposed enterprise agreement.

Note:          Grade A civil penalty.

             (4)  An employer must not apply, or attempt to apply, undue pressure to an employee of the employer in relation to who is to be, or is not to be, the employee’s bargaining representative for a proposed enterprise agreement.

Note:          Grade A civil penalty.

             (5)  To the extent that section 343 of the FW Act relates to:

                     (a)  the making, varying or terminating of an enterprise agreement; or

                     (b)  the appointment, or termination of appointment, of a bargaining representative for a proposed enterprise agreement;

that section does not apply if the agreement is a building enterprise agreement.

55   Coverage by particular instruments

             (1)  A person must not take action against a building employer because:

                     (a)  building employees of the building employer are covered, or not covered, by a Commonwealth industrial instrument; or

                     (b)  it is proposed that building employees of the building employer be covered, or not be covered, by a Commonwealth industrial instrument.

Note 1:       See also Division 2 (reason for action).

Note 2:       Grade A civil penalty.

             (2)  Subsection (1) does not apply to protected industrial action.

Division 2 General provisions

56   Multiple reasons for action

                   For the purposes of section 47 (unlawful picketing prohibited) and this Part, a person takes action for a particular reason if the reasons for the action include that reason.

57   Reason for action to be presumed unless proved otherwise

             (1)  If:

                     (a)  in an application in relation to a contravention of section 47 (unlawful picketing prohibited) or a civil remedy provision in this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

                     (b)  taking that action for that reason or with that intent would constitute a contravention of the section or provision;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

             (2)  Subsection (1) does not apply in relation to an interim injunction.

58   Advising, encouraging, inciting or coercing action

             (1)  If:

                     (a)  for a particular reason (the first person’s reason ), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and

                     (b)  the action, if taken by the second person for the first person’s reason, would contravene section 47 (unlawful picketing prohibited) or a civil remedy provision in this Part;

the first person is taken to have contravened the section or provision.

Note:          See also section 97 (capacity, state of mind etc. of person being coerced etc.).

             (2)  Subsection (1) does not limit section 92 (ancillary contravention of civil remedy provisions).