Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88

A permit holder’s rights under s 484 exist even if the permit holder does not comply with all requirements of Subdivision C; compliance is not a precondition but a qualification to exercise. Failure to comply with notice and permit production requirements may constitute acting in an improper manner under s 500. ‘In accordance with this Part’ in s 500 is to be construed as ‘covered by’ the Part, not ‘in complete conformity with’. The ability of an occupier to request authority documents under s 489 is an entitlement to a benefit under a workplace law, constituting a workplace right for s 341(1)(a).

Jurisdiction
Australia
Judgment Date
14 June 2018
Procedural Posture
Appeal / Judgment on Appeal and Cross Appeal
Outcome
Appeal allowed; cross-appeal dismissed; matter remitted to primary judge for further hearing.
Legal Topics
['right of Entry' 'exercise of Rights Under the Fair Work Act' 'improper Conduct of Permit Holders' 'production of Permits and Entry Notices' 'workplace Rights and Adverse Action']
['industrial Law' 'statutory Interpretation' 'employment Law'] ['right of Entry' 'exercise of Rights Under the Fair Work Act' 'improper Conduct of Permit Holders' 'production of Permits and Entry Notices' 'workplace Rights and Adverse Action']

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Procedural Posture

Appeal / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether the failure by union officials to provide notice of entry under s 487 or produce a permit under s 489 of the Fair Work Act 2009 (Cth) means they were not exercising, or seeking to exercise, rights in accordance with Part 3-4 and so s 500 is not engaged' 'Whether such failures constitute acting in an ‘improper manner’ for the purposes of s 500 of the Fair Work Act' 'Interpretation of ‘in accordance with this Part’ in s 500' 'Whether the rights conferred by s 484 exist independent of compliance with Subdivision C (ss 487, 489)' 'Whether the ability of occupiers to request authority documents under s 489 constitutes a ‘workplace right’ for the purposes of s 341']

Ratio Decidendi

A permit holder’s rights under s 484 exist even if the permit holder does not comply with all requirements of Subdivision C; compliance is not a precondition but a qualification to exercise. Failure to comply with notice and permit production requirements may constitute acting in an improper manner under s 500. ‘In accordance with this Part’ in s 500 is to be construed as ‘covered by’ the Part, not ‘in complete conformity with’. The ability of an occupier to request authority documents under s 489 is an entitlement to a benefit under a workplace law, constituting a workplace right for s 341(1)(a).

Court Disposition

Appeal allowed; cross-appeal dismissed; matter remitted to primary judge for further hearing.

Orders

  • ['The appeal be allowed.' 'Order 2 made by the primary judge on 17 July 2017 be set aside and the matter be remitted to him for further hearing in accordance with these reasons.' 'The cross-appeal be dismissed.']