Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Cup of Tea Case) [2018] FCA 402

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Cup of Tea Case) [2018] FCA 402

The respondents entered the site for a solely social visit and were not exercising or seeking to exercise rights under s 484 of the Fair Work Act 2009 (Cth); thus, allegations under s 500 were not made out. Regarding s 348, as the evidence from both key witnesses regarding the alleged threat was equally balanced, the burden of proof was not discharged, and the allegation was not made out.

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Mark Travers; Third Respondent: Adam Hall
Jurisdiction
Australia
Judgment Date
26 March 2018
Procedural Posture
Application for Pecuniary Penalties and Declarations of Contraventions / Judgment After Final Hearing
Outcome
Application dismissed
Legal Topics
Right of Entry, Fair Work Act Contraventions, Interpretation of S 484 and S 500, Interpretation of S 348, Evidentiary Burden in Civil Cases
Industrial Law Employment Law Right of Entry Fair Work Act Contraventions Interpretation of S 484 and S 500 Interpretation of S 348 Evidentiary Burden in Civil Cases

Case Brief

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Mark Travers

Second Respondent

Adam Hall

Third Respondent

Procedural Posture

Application for Pecuniary Penalties and Declarations of Contraventions / Judgment After Final Hearing

Legal Issues

  1. 1 Whether the respondents exercised or sought to exercise rights under s 484 of the Fair Work Act 2009 (Cth) such that s 500 applied
  2. 2 Whether entry for a wholly social purpose falls within s 484 of the Act
  3. 3 Whether respondent contravened s 348 of the Act by threatening to take action against a contractor

Ratio Decidendi

The respondents entered the site for a solely social visit and were not exercising or seeking to exercise rights under s 484 of the Fair Work Act 2009 (Cth); thus, allegations under s 500 were not made out. Regarding s 348, as the evidence from both key witnesses regarding the alleged threat was equally balanced, the burden of proof was not discharged, and the allegation was not made out.

Court Disposition

Application dismissed

Orders

  • The application is dismissed.