The good old duck test again

In a number of areas, the applicant’s case that one (or, in some cases, two) of the individual respondents organized industrial action taken by workers on a construction site involved a submission that the court should infer that fact from events that were externally observable, such as, and most commonly, the arrival of the respondent on the site, the insistence by that respondent that there be a meeting of the workers,  the holding of the meeting where the workers were addressed by the respondent and the subsequent departure of the workers from  the site.  As a Judge sitting in the Fair Work Division of the Court, I think I may be permitted the observation that such a sequence of events is the paradigm case of a union organizer organizing industrial action in the construction industry.  As they say, a conclusion to that effect satisfies what is sometimes referred to as the Duck Test.

Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) (2017) FCA 168 delivered 1 March 2017 per Jessup J