Kirby v JKC Australia LNG Pty Ltd [2015] FCA 1070

Kirby v JKC Australia LNG Pty Ltd [2015] FCA 1070

The applicants established a reasonably arguable construction of s 518 of the Fair Work Act 2009 (Cth) and a favourable balance of convenience for an injunction preventing refusal of entry by reason only that the entry notice described the premises as the Ichthys On-shore Construction Project at Blaydin Point or did not specify the time of entry. They did not establish a sufficient prima facie case that s 117 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) authorised photography or filming, because s 118 is prescriptive and contains no express right to use a camera. The proposed broad injunction against hindering, obstructing or delaying entry was refused...

Jurisdiction
Australia
Judgment Date
18 September 2015
Procedural Posture
Industrial Law Proceeding Concerning Right of Entry Permits Under the Fair Work Act 2009 (cth) and Work Health and Safety (national Uniform Legislation) Act 2011 (nt) / Interlocutory Application for Injunctions
Outcome
Interlocutory injunction granted in part; remaining aspects of the application refused.
Legal Topics
['right of Entry Permits' 'union Officials' 'interlocutory Injunctions' 'statutory Construction' 'entry Notices' 'workplace Inspection' 'hindering or Obstructing Entry']
['industrial Law' 'work Health and Safety Law' 'civil Procedure'] ['right of Entry Permits' 'union Officials' 'interlocutory Injunctions' 'statutory Construction' 'entry Notices' 'workplace Inspection' 'hindering or Obstructing Entry']

Case Brief

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Procedural Posture

Industrial Law Proceeding Concerning Right of Entry Permits Under the Fair Work Act 2009 (cth) and Work Health and Safety (national Uniform Legislation) Act 2011 (nt) / Interlocutory Application for Injunctions

Legal Issues

  1. 1 ['Whether notices of entry under s 487 of the Fair Work Act 2009 (Cth) must specify particular premises or parts of premises, rather than the overall project site.' 'Whether an entry notice under the Fair Work Act 2009 (Cth) must specify the time of proposed entry as well as the day of entry.' 'Whether entry under s 117 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) includes a power to photograph or film premises while inspecting health and safety concerns.' 'Whether an interlocutory injunction should restrain the respondents from hindering, obstructing or delaying CEPU officials exercising rights of entry.']

Ratio Decidendi

The applicants established a reasonably arguable construction of s 518 of the Fair Work Act 2009 (Cth) and a favourable balance of convenience for an injunction preventing refusal of entry by reason only that the entry notice described the premises as the Ichthys On-shore Construction Project at Blaydin Point or did not specify the time of entry. They did not establish a sufficient prima facie case that s 117 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) authorised photography or filming, because s 118 is prescriptive and contains no express right to use a camera. The proposed broad injunction against hindering, obstructing or delaying entry was refused...

Court Disposition

Interlocutory injunction granted in part; remaining aspects of the application refused.

Orders

  • ['The Respondents be restrained, and an injunction is hereby issued restraining them, whether by themselves or by their servants or agents, until the hearing and determination of this matter or until further order, from refusing officials of the Fourth Applicant, who hold permits issued under s 512 of the Fair Work...