Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802 File number: VID 281 of 2015

Judge: BROMBERG J

Date of judgment: 17 July 2017

Catchwords: INDUSTRIAL LAW – right of entry – Part 3–4 Fair Work Act 2009 (Cth) ("FW Act") – whether s 500 of the FW Act, which requires that a permit holder exercising or seeking to exercise rights in accordance with Part 3–4, contravened – s 500 only engaged where a permit holder is or is seeking to exercise a right conferred by Part 3–4 of the FW Act and not where entry is made in another capacity – where the permit-holders did not provide notice of entry in accordance with s 487 – where the permit-holders did not produce their entry permits on request in accordance with s 489 – consideration of the meaning of "exercising … rights in accordance with this Part" – the giving of notice under s 487 is a condition of the conferral of a right of entry under Part 3–4 – having not given notice, the permit-holders did not have and could not exercise a Part 3–4 right – whether the permit-holders were seeking to exercise a right of entry conferred by s 484 – (see below in relation to proper construction of "seeking to exercise rights in accordance with this Part") – the permit holders were not seeking to exercise a Part 3–4 right – whether entry in disregard of the requirements of ss 487 and 489 amounted to acting in an improper manner – consideration of "otherwise act in an improper manner" STATUTORY INTERPRETATION –– consideration of the proper construction of "seeking to exercise rights in accordance with this Part" under s 500 of the FW Act – distinction between "seeking" and "purporting" – "in accordance with" means "in conformity with" – the word "seeking" in s 500 connotes a subjective intention to exercise rights and includes the intended but flawed exercise of the right. INDUSTRIAL LAW – right of entry – FW Act, s 503 – where union permit-holders, in the course of entering premises without any right of entry, made certain statements – whether the act of entering and the statements made amounted to taking action, intentionally or recklessly, to give the impression that the permit–holders were authorised to enter – none of the permit-holders' conduct evinced an intention to give the impression that they were authorised to enter, nor was it reckless as to whether that intention was given INDUSTRIAL LAW – adverse action – FW Act, s 340 – where union official, in the course of entering premises without any right of entry, made threats to a site manager to take action to disrupt work – threat capable of constituting adverse action under s 341 – allegation that adverse action taken in response to the site manager's request under s 489 for the official to produce his permit – whether a request to see a permit constitutes the exercise of a workplace right – any obligation to produce a permit under s 489 is limited to entries made under subdivision B of Part 3–4 and the section is not engaged where a permit-holder enters in any other capacity – in any event, s 489 does not confer any workplace right upon an occupier