Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) [2018] FCA 1698

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) [2018] FCA 1698

Mr Murphy was a permit holder exercising or seeking to exercise rights under Pt 3-4 of the Fair Work Act 2009 (Cth). His deliberate conduct in entering the site without notice, refusing to produce his entry permit or leave, calling and conducting a meeting, aggressively criticising the subcontractors, stating that he was closing or shutting down the site, and remaining until workers left caused the subcontractors and their employees to stop work and leave, thereby hindering and obstructing them and Harris HMC. The same conduct, including aggression, threats, refusal to leave, and conscious disregard of notice obligations, also amounted to acting in an improper manner under s 500.

Jurisdiction
Australia
Judgment Date
09 November 2018
Procedural Posture
Application for Declarations and Pecuniary Penalties for Alleged Contraventions of S 500 of the Fair Work Act 2009 (cth) / Liability Determined Separately From Relief; Reasons and Directions Before Penalty
Outcome
Contraventions of s 500 by Mr Murphy were established; CFMMEU liability was not finally determined and further directions were made.
Legal Topics
['fair Work Act Right of Entry' 'permit Holder Conduct' 'intentional Hindrance or Obstruction' 'improper Manner' 'union Liability']
['industrial Law' 'employment and Industrial Relations'] ['fair Work Act Right of Entry' 'permit Holder Conduct' 'intentional Hindrance or Obstruction' 'improper Manner' 'union Liability']

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Procedural Posture

Application for Declarations and Pecuniary Penalties for Alleged Contraventions of S 500 of the Fair Work Act 2009 (cth) / Liability Determined Separately From Relief; Reasons and Directions Before Penalty

Legal Issues

  1. 1 ['Whether Mr Murphy, as a permit holder exercising or seeking to exercise rights in accordance with Pt 3-4 of the Fair Work Act 2009 (Cth), intentionally hindered or obstructed subcontractors and their employees working on the construction site.' 'Whether Mr Murphy intentionally hindered or obstructed Harris HMC in the performance of scheduled works on the construction site.' 'Whether Mr Murphy otherwise acted in an improper manner within the meaning of s 500 of the Fair Work Act 2009 (Cth).' 'Whether the CFMMEU could also be found to have contravened s 500, including by operation of s 793 or s 550 of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

Mr Murphy was a permit holder exercising or seeking to exercise rights under Pt 3-4 of the Fair Work Act 2009 (Cth). His deliberate conduct in entering the site without notice, refusing to produce his entry permit or leave, calling and conducting a meeting, aggressively criticising the subcontractors, stating that he was closing or shutting down the site, and remaining until workers left caused the subcontractors and their employees to stop work and leave, thereby hindering and obstructing them and Harris HMC. The same conduct, including aggression, threats, refusal to leave, and conscious disregard of notice obligations, also amounted to acting in an improper manner under s 500.

Court Disposition

Contraventions of s 500 by Mr Murphy were established; CFMMEU liability was not finally determined and further directions were made.

Orders

  • ["On or before 23 November 2018, the parties are to file a proposed agreed form of declaration regarding Mr Murphy's liability and reflecting the findings in the Court's reasons dated 9 November 2018." 'On or before 23 November 2018, the parties are to inform the Court by way of joint note what is the position of...