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

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

The court found that the second respondent (Simpson), in two incidents, failed to comply with reasonable requests for PPE and escort while exercising OHS entry rights, and continued to exercise those rights contrary to such requests, contravening s 499. These refusals, persistence in remaining on site, and diversion of site personnel also amounted to impropriety under s 500. The pushing of Inkster at the Gate 3 site by Simpson constituted an additional contravention of s 500. The Union was liable for these contraventions via statutory attribution and accessorial liability. The allegations against the third respondent (Clark), including the alleged physical conduct at Gate 24 and...

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Maritime, Mining and Energy Union; Second Respondent: James Simpson; Third Respondent: Peter Clark
Jurisdiction
Australia
Judgment Date
02 December 2020
Procedural Posture
Application Under the Fair Work Act 2009 (cth) for Contraventions of Ss 499 and 500 and Related Relief / Liability Judgment (all Matters Other Than Relief Decided); Further Hearing Ordered on Relief
Outcome
Application against third respondent dismissed; findings of contravention against first and second respondents; further hearing ordered on relief.
Legal Topics
Right of Entry, Occupational Health and Safety, Trade Union Officials, Civil Remedy Provisions, Accessorial Liability
Industrial Law Employment Law Right of Entry Occupational Health and Safety Trade Union Officials Civil Remedy Provisions Accessorial Liability

Case Brief

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Maritime, Mining and Energy Union

First Respondent

James Simpson

Second Respondent

Peter Clark

Third Respondent

Procedural Posture

Application Under the Fair Work Act 2009 (cth) for Contraventions of Ss 499 and 500 and Related Relief / Liability Judgment (all Matters Other Than Relief Decided); Further Hearing Ordered on Relief

Legal Issues

  1. 1 Whether the second respondent failed to comply with applicable occupational, health and safety requirements (s 499 FW Act)
  2. 2 Whether the second and third respondents acted improperly while exercising rights of entry (s 500 FW Act)
  3. 3 Whether alleged contraventions were established on the evidence

Ratio Decidendi

The court found that the second respondent (Simpson), in two incidents, failed to comply with reasonable requests for PPE and escort while exercising OHS entry rights, and continued to exercise those rights contrary to such requests, contravening s 499. These refusals, persistence in remaining on site, and diversion of site personnel also amounted to impropriety under s 500. The pushing of Inkster at the Gate 3 site by Simpson constituted an additional contravention of s 500. The Union was liable for these contraventions via statutory attribution and accessorial liability. The allegations against the third respondent (Clark), including the alleged physical conduct at Gate 24 and...

Court Disposition

Application against third respondent dismissed; findings of contravention against first and second respondents; further hearing ordered on relief.

Orders

  • 1. The application as against the third respondent be dismissed.
  • 2. The matter be listed for further hearing on a date to be fixed regarding the relief that should be granted as against the first and second respondents in light of the court's reasons for judgment.