Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88 Appeal from: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 252 FCR 198; [2017] FCA 802

File number: VID 872 of 2017

Judges: ALLSOP CJ, TRACEY AND WHITE JJ

Date of judgment: 14 June 2018

Catchwords: INDUSTRIAL LAW – appeal from a judgment of the Federal Court of Australia – where the primary judge found that two officials of the Construction, Forestry, Mining and Energy Union, who held permits under the Fair Work Act 2009 (Cth), had not contravened ss 500 and 340 of that Act – where the permit holders made five entries to the relevant premises – where those permit holders did not provide notice of those entries as required by s 487 – where, once they had entered, they did not produce their permits upon request as required by s 489 – where the primary judge held that, because no notice had been given and no permits had been produced upon request, they were not exercising, or seeking to exercise, rights in accordance with Part 3-4 of the Fair Work Act 2009 (Cth) and so s 500 was not engaged – where the primary judge held that s 340 had not been contravened because the request for the production of a permit under s 489 did not involve a "workplace right" as defined by s 341 – whether the primary judge erred in failing to find contraventions of ss 500 and 340 INDUSTRIAL LAW – where the respondents cross-appealed from the same judgment – whether the primary judge erred by finding, for reasons of comity, that a bare failure by a permit holder to give notice under s 487 or to produce a permit under s 489 constitutes acting in an "improper manner" for the purpose of s 500 – whether the primary judge erred by failing to hold that s 500 could not be contravened without a finding of some prejudice to the site occupier's ability to conduct its business as usual – whether the primary judge erred by failing to dismiss the alleged contraventions of s 500 in circumstances where he had found that the Commissioner's pleadings were confined to allegations of bare contraventions of ss 487 and 489 – whether the primary judge erred in holding that the Commissioner's pleadings were so confined – whether the primary judge erred by finding that, had s 361(1) of the Fair Work Act 2009 (Cth) been engaged for the purposes of s 340, the third respondent would not have discharged his onus to prove that he had not acted for a proscribed purpose STATUTORY INTERPRETATION – meaning of "exercising, or seeking to exercise, rights in accordance with this Part" in s 500 of the Fair Work Act 2009 (Cth) – whether a permit holder who refuses or fails to comply with s 487 or s 498 could be found to be exercising or seeking to exercise a right in accordance with Part 3-4 of the Fair Work Act 2009 (Cth) – whether "in accordance with" means "in conformity with" or "covered by" STATUTORY INTERPRETATION – meaning of "otherwise act in an improper manner" in s 500 of the Fair Work Act 2009 (Cth) – whether a bare failure to comply with s 487 or s 489 constitutes acting in an improper manner STATUTORY INTERPRETATION – meaning of "workplace right" in s 341(1) of the Fair Work Act 2009 (Cth) – whether the ability of an occupier to request the production of authority documents under s 489 constitutes an entitlement to the benefit of, or a role or responsibility under, a workplace law for the purposes of s 341(1)(a) – whether a request for authority documents constitutes initiation of, or participation in, a process or proceeding under a workplace law for the purposes of s 341(1)(b)