Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64

FEDERAL COURT OF AUSTRALIA

Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 Appeal from: Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668; (2015) 147 ALD 373 Director of the Fair Work Building Industry Inspectorate v Bragdon (No 2) [2015] FCA 998

File number(s): NSD 1183 of 2015

Judge(s): BUCHANAN, REEVES AND BROMBERG JJ

Date of judgment: 28 April 2016

Catchwords: INDUSTRIAL LAW – first and second appellants entered construction site – whether they exercised, or were seeking to exercise, rights of entry – first and second appellants did not have any rights under State law which they were entitled to exercise – whether primary judge was correct in finding the first and second appellants contravened sections 497, 500 and 503 of the Fair Work Act 2009 (Cth) – first and second appellants did not hold a State entry permit – first and second appellants did not contravene sections 497, 500 or 503 of the FW Act – third appellant not vicariously liable pursuant to section 793 of the FW Act – appeal allowed – declarations and penalties made at first instance set aside – application at first instance dismissed – whether orders should prevent payment of penalties by a third party considered but not decided

Legislation: Fair Work Act 2009 (Cth), ss 12, 494, 494(1), 494(2), 495, 496, 497, 498, 499, 500, 501, 502, 503, 503(1), 512, 545, 546, 546(4), 793 Fair Work (Building Industry) Act 2012 (Cth) Inclosed Lands Protection Act 1901 (NSW), s 4 Occupational Health and Safety Act 2000 (NSW) Work Health and Safety Act 2011 (NSW), ss 117, 118, 121, 122, 124 Work Health and Safety Act 2011 (Qld), s 134