Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Monash Freeway Widening Case) [2022] FCAFC 59

Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Monash Freeway Widening Case) [2022] FCAFC 59 Appeal from: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101

File number: VID 589 of 2021

Judgment of: BROMBERG, CHARLESWORTH AND MCELWAINE JJ

Date of judgment: 11 April 2022

Catchwords: INDUSTRIAL LAW – appeal from judgment and orders based on a finding of contravention of s 500 of the Fair Work Act 2009 (Cth) – permit holder found to have acted in an improper manner in the exercise of powers – permit holder found to have physically pushed past a project manager at a construction site with deliberate intent – whether finding of contravention was based to any extent on the advantage of the trial judge in seeing and hearing the witnesses give their evidence at the trial – role of the Full Court on an appeal by way of rehearing in relation to an alleged error of fact – whether applicant's allegation of contravention proved to the requisite standard under s 140 of the Evidence Act 1995 (Cth) – appeal allowed – orders imposing pecuniary penalties varied

Legislation: Evidence Act 1995 (Cth) s 140 Fair Work Act 2009 (Cth) ss 494, 500, 550, 793 Federal Court of Australia Act 1976 (Cth) s 24 Occupational Health and Safety Act 2004 (Vic) ss 87, 88