Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77 Appeal from: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 414

File numbers: SAD 128 of 2016 SAD 129 of 2016

Judges: NORTH, BESANKO, FLICK JJ

Date of judgment: 17 May 2017

Catchwords: INDUSTRIAL LAW – right of entry to premises – whether failure to give occupier notice renders right "not in accordance" with Part 3-4 of the Fair Work Act 2009 (Cth) PRACTICE AND PROCEDURE – leave to raise new arguments on appeal – arguments contrary to the manner in which the proceedings were conducted – potential for further evidence – leave refused

Legislation: Fair Work Act 2009 (Cth) ss 478, 480, 484, 487, 500, 521D, 550, 793, Pts 3-4, 6-5 Federal Court of Australia Act 1976 (Cth) s 37M

Cases cited: Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586, (2009) 264 ALR 201 Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, (2009) 236 FLR 1 Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64, (2016) 242 FCR 46 Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41, (2016) 338 ALR 360 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 414 Jones v Dunkel (1959) 101 CLR 298 Siegwerk Australia Pty Ltd v Nuplex Industries (Australia) Pty Ltd [2013] FCAFC 130, (2013) 305 ALR 412 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, (2004) 238 FCR 588 Water Board v Moustakas (1988) 180 CLR 491