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

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

The Full Court found that the factual findings underlying the contravention of s 500 of the Fair Work Act 2009 (Cth) were affected by appealable error, as the Commissioner's case regarding the 'Gate 3 Incident' was not proven to the requisite standard considering the totality of the evidence, notably the inconsistencies between the main witnesses and the lack of corroborative contemporaneous records. Consequently, the finding of contravention and related penalties could not stand.

Parties
First Appellant: Construction, Forestry, Maritime, Mining and Energy Union; Second Appellant: James Simpson; Respondent: Australian Building and Construction Commissioner
Jurisdiction
Australia
Judgment Date
11 April 2022
Procedural Posture
Appeal / Judgment on Appeal
Outcome
appeal allowed
Legal Topics
Contravention of Fair Work Act S 500, Permit Holder Conduct, Standard of Proof, Pecuniary Penalties, Appellate Review of Findings of Fact
Industrial Law Employment Law Contravention of Fair Work Act S 500 Permit Holder Conduct Standard of Proof Pecuniary Penalties Appellate Review of Findings of Fact

Case Brief

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Parties

Construction, Forestry, Maritime, Mining and Energy Union

First Appellant

James Simpson

Second Appellant

Australian Building and Construction Commissioner

Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the finding of contravention of s 500 of the Fair Work Act 2009 (Cth) was open on the evidence
  2. 2 The role of the appellate court in reviewing factual findings based on witness credibility
  3. 3 Whether the standard of proof was met for the alleged improper conduct

Ratio Decidendi

The Full Court found that the factual findings underlying the contravention of s 500 of the Fair Work Act 2009 (Cth) were affected by appealable error, as the Commissioner's case regarding the 'Gate 3 Incident' was not proven to the requisite standard considering the totality of the evidence, notably the inconsistencies between the main witnesses and the lack of corroborative contemporaneous records. Consequently, the finding of contravention and related penalties could not stand.

Court Disposition

appeal allowed

Orders

  • The appeal is allowed.
  • Orders in paragraphs 1 and 2 of the orders made by the primary judge on 14 September 2021 are set aside and substituted as follows: