Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802

Permit holders did not exercise or seek to exercise a right of entry in accordance with Part 3–4 of the Fair Work Act 2009 (Cth) because notice and permit requirements were not met, and their conduct did not demonstrate an intention to exercise statutory rights of entry; accordingly, s 500, s 503, and s 340 were not engaged or contravened, and no liability arises.

Jurisdiction
Australia
Judgment Date
17 July 2017
Procedural Posture
Originating Application (civil Penalty Proceedings) / Final Judgment
Outcome
Applicant's Originating Application dismissed.
Legal Topics
['right of Entry' 'fair Work Act 2009 (cth)' 'statutory Interpretation' 'adverse Action' 'civil Penalties']
['employment & Industrial Relations' 'industrial Law'] ['right of Entry' 'fair Work Act 2009 (cth)' 'statutory Interpretation' 'adverse Action' 'civil Penalties']

Case Brief

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Procedural Posture

Originating Application (civil Penalty Proceedings) / Final Judgment

Legal Issues

  1. 1 ["Whether permit holders contravened s 500 of the Fair Work Act 2009 (Cth) by acting in an 'improper manner' during entry to premises" 'Whether permit holders contravened s 503 of the Fair Work Act 2009 (Cth) by misrepresenting authority to enter premises' 'Whether permit holders contravened s 340 of the Fair Work Act 2009 (Cth) by taking adverse action for a protected reason']

Ratio Decidendi

Permit holders did not exercise or seek to exercise a right of entry in accordance with Part 3–4 of the Fair Work Act 2009 (Cth) because notice and permit requirements were not met, and their conduct did not demonstrate an intention to exercise statutory rights of entry; accordingly, s 500, s 503, and s 340 were not engaged or contravened, and no liability arises.

Court Disposition

Applicant's Originating Application dismissed.

Orders

  • ['The title of the proceeding be amended to show the Australian Building and Construction Commissioner as the applicant.' "The applicant's Originating Application dated 29 May 2015 is dismissed."]