Australian Building and Construction Commissioner v Harris [2017] FCA 733

Australian Building and Construction Commissioner v Harris [2017] FCA 733

Mr Harris contravened s 500 because he entered the site without a right of entry notice or permission, knew he was not permitted to enter, and refused to leave despite directions, thereby acting in a deliberately unlawful and defiant improper manner while seeking to exercise Part 3-4 rights. The CFMEU did not contravene s 500 because s 793 attributed Mr Harris' conduct to the CFMEU but did not attribute liability, and s 500 is addressed to a permit holder rather than to the CFMEU as a body corporate. A $2,000 penalty for Mr Harris was appropriate having regard to the deliberate and defiant conduct, the short duration, absence of alleged pecuniary loss, his cooperation by admissions, prior...

Jurisdiction
Australia
Judgment Date
29 June 2017
Procedural Posture
Industrial Law Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) / Judgment Determined on the Papers as to the Cfmeu's Liability and Penalties After Admissions and Amended Pleadings
Outcome
The Court declared that the first respondent contravened s 500 of the Fair Work Act 2009 (Cth), imposed a pecuniary penalty of $2,000 on the first respondent, and dismissed the applicant's application against the third respondent.
Legal Topics
['contravention of S 500 of the Fair Work Act 2009 (cth)' 'right of Entry by Union Permit Holder' 'attribution of Conduct to a Body Corporate Under S 793 of the Fair Work Act 2009 (cth)' 'union Liability for Conduct of Officer' 'pecuniary Penalties']
['industrial Law' 'employment and Industrial Relations'] ['contravention of S 500 of the Fair Work Act 2009 (cth)' 'right of Entry by Union Permit Holder' 'attribution of Conduct to a Body Corporate Under S 793 of the Fair Work Act 2009 (cth)' 'union Liability for Conduct of Officer' 'pecuniary Penalties']

Case Brief

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Procedural Posture

Industrial Law Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) / Judgment Determined on the Papers as to the Cfmeu's Liability and Penalties After Admissions and Amended Pleadings

Legal Issues

  1. 1 ['Whether Mr Harris contravened s 500 of the Fair Work Act 2009 (Cth) by acting in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the Act.' "Whether, by operation of s 793 of the Fair Work Act 2009 (Cth), the CFMEU was taken to have contravened s 500 because Mr Harris' conduct was taken to be the conduct of the CFMEU." 'What pecuniary penalty should be imposed on Mr Harris.']

Ratio Decidendi

Mr Harris contravened s 500 because he entered the site without a right of entry notice or permission, knew he was not permitted to enter, and refused to leave despite directions, thereby acting in a deliberately unlawful and defiant improper manner while seeking to exercise Part 3-4 rights. The CFMEU did not contravene s 500 because s 793 attributed Mr Harris' conduct to the CFMEU but did not attribute liability, and s 500 is addressed to a permit holder rather than to the CFMEU as a body corporate. A $2,000 penalty for Mr Harris was appropriate having regard to the deliberate and defiant conduct, the short duration, absence of alleged pecuniary loss, his cooperation by admissions, prior...

Court Disposition

The Court declared that the first respondent contravened s 500 of the Fair Work Act 2009 (Cth), imposed a pecuniary penalty of $2,000 on the first respondent, and dismissed the applicant's application against the third respondent.

Orders

  • ['The first respondent has contravened s 500 of the Fair Work Act 2009 (Cth) by reason of acting in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the Fair Work Act on 25 May 2015.' 'The first respondent is to pay a pecuniary penalty of $2,000 to the Commonwealth.'...