Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122 File number: VID 194 of 2016

Judge: TRACEY J

Date of judgment: 23 February 2018

Catchwords: INDUSTRIAL LAW – alleged contraventions of ss 497 and 500 of the Fair Work Act 2009 (Cth) at a building site in Bendigo by officers of the CFMEU – whether there is evidence to support findings of the alleged contraventions – whether the CFMEU is liable for any contraventions committed by its officers pursuant to ss 550 or 793 of the Fair Work Act 2009 (Cth) or pursuant to principles of common law vicarious liability

Legislation: Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) Sch 2, cl 19 Evidence Act 1995 (Cth) s 140(2)(c) Fair Work Act 2009 (Cth) ss 12, 478, 484, 487, 489, 489(2), 494, 494(3), 497, 500, 512, 539(2), 546, 550, 550(1)(c), 793, 793(1), 793(2), Pt 3-4 Fair Work Regulations 2009 (Cth) reg 3.25, Item 2 Occupational Health and Safety Act 2004 (Vic) ss 58, 58(1)(f), 70, 70(1), 83, 87, 87(2), 88, 89

Cases cited: Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2017] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 Australian Building and Construction Commissioner v Harris [2017] FCA 733 Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 Australian Building and Construction Commissioner v O'Connor (No 3) [2018] FCA 43 Australian Building and Construction Commissioner v Powell [2017] FCAFC 89 Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) [2017] FCA 847 Briginshaw v Briginshaw (1938) 60 CLR 336 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Protection Commission (2007) 162 FCR 466; [2007] FCAFC 132 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77 Director of the Fair Work Building Industry Inspectorate v Bragdon (2015) 147 ALD 373; [2015] FCA 668 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Minister and Energy Union (No 2) [2016] FCA 607 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 Upton [2015] FCA 672 Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2016] FCA 872 Director of the Fair Work Building Inspectorate v Powell [2016] FCA 1287 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Garrett v The Commissioner of Taxation (2015) 233 FCR 226; [2015] FCA 665 Jones v Dunkel (1959) 101 CLR 298 Powell v Australian Building and Construction Commissioner [2017] HCATrans 239 Qantas Airways Ltd v Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63 Re York Street Mezzanine Pty Ltd (in liq) (2007) 162 FCR 358; [2007] FCA 922 Setka v Gregor (No 2) (2011) 195 FCR 203; [2011] FCAFC 90 Woodridge v Minister for Land and Water Conservation (NSW) (2002) 122 FCR 190; [2002] FCA 1109 Date of hearing: 5, 6 and 7 December 2016