Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727

Federal Court of Australia

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727 File number: VID 496 of 2018

Judgment of: SNADEN J

Date of judgment: 2 December 2020

Catchwords: INDUSTRIAL LAW – Application made under the Fair Work Act 2009 (Cth) (hereafter, the "FW Act") in respect of alleged contraventions of ss 499 and 500 – whether the second respondent unreasonably failed to comply with applicable occupational, health and safety requirements – whether the second and third respondents acted in an improper manner whilst exercising rights of entry in accordance with the FW Act – multiple contraventions alleged – whether first respondent involved in contraventions committed by its officials – application granted in part

Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – s 15 Evidence Act 1995 (Cth) – s 140 Fair Work Act 2009 (Cth) – pt 3-4; divs 3 and 4; ss 494, 497, 499, 500, 539, 545, 546, 550, 570 and 793 Fair Work (Registered Organisations) Act 2009 (Cth) Occupational Health and Safety Act 2004 (Vic) – pt 8; ss 87, 88 and 89 Summary Offences Act 1966 (Vic) – s 9 Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases cited: Australian Building and Construction Commissioner v Upton (2017) 270 IR 190 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (Castlemaine Police Station Case) (2018) 258 FCR 158 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473 Australian Building and Construction Commissioner v Harris [2017] FCA 733 Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393 Bragdon v Director of the Fair Work Building Industry Inspectorate (2016) 242 FCR 46 Briginshaw v Bringinshaw (1938) 60 CLR 336 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2019) 272 FCR 290 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203 Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 Darlaston v Parker (2010) 189 FCR 1 Director of the Fair Work Building Industry Inspectorate v Cartledge (2015) 239 FCR 405 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2016] FCA 872 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Hu (2019) 289 IR 240