Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122

Mr Davies (22 and 29 July 2014) and Mr Tadic (1 August 2014) each committed contraventions of s 500 FW Act by acting in an improper manner when exercising or seeking to exercise OHS entry rights as permit holders to the Bendigo Theatre site, including by refusing to produce entry permits to the occupier on request, using profane language, and failing to leave when directed. Mr Davies also contravened s 497 by continuing to exercise OHS rights after refusing to show his permit. The conduct of officers was improper, meeting the statutory threshold of falling below the standard expected of permit holders. The CFMEU is liable for Mr Davies' and Mr Tadic's contraventions of s 500 as an...

Parties
Applicant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Nigel Davies; Third Respondent: Alex Tadic
Jurisdiction
Australia
Judgment Date
23 February 2018
Procedural Posture
Civil Penalty Proceeding / Liability Judgment (relief/penalties Reserved)
Outcome
Liability found for contraventions of ss 497 (Mr Davies) and 500 (Mr Davies, Mr Tadic); CFMEU liable for officers’ contraventions of s 500 via s 550. Relief, including penalties, reserved for future hearing.
Legal Topics
Right of Entry, Occupational Health and Safety, Trade Union Official Conduct, Fair Work Act Civil Remedy Provisions, Liability of Registered Organisations for Breach, Use of Profane Language by Permit Holders
Industrial Law Employment Law Right of Entry Occupational Health and Safety Trade Union Official Conduct Fair Work Act Civil Remedy Provisions Liability of Registered Organisations for Breach Use of Profane Language by Permit Holders

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Parties

Australian Building and Construction Commissioner

Applicant

Construction, Forestry, Mining and Energy Union

First Respondent

Nigel Davies

Second Respondent

Alex Tadic

Third Respondent

Procedural Posture

Civil Penalty Proceeding / Liability Judgment (relief/penalties Reserved)

Legal Issues

  1. 1 Whether officers of CFMEU contravened ss 497 and/or 500 of the Fair Work Act 2009 (Cth) at a building site in Bendigo
  2. 2 Whether CFMEU is liable for contraventions by its officers via ss 550 or 793 of the Fair Work Act 2009 (Cth) or at common law
  3. 3 Whether conduct in question constituted acting 'in an improper manner' within the meaning of s 500

Ratio Decidendi

Mr Davies (22 and 29 July 2014) and Mr Tadic (1 August 2014) each committed contraventions of s 500 FW Act by acting in an improper manner when exercising or seeking to exercise OHS entry rights as permit holders to the Bendigo Theatre site, including by refusing to produce entry permits to the occupier on request, using profane language, and failing to leave when directed. Mr Davies also contravened s 497 by continuing to exercise OHS rights after refusing to show his permit. The conduct of officers was improper, meeting the statutory threshold of falling below the standard expected of permit holders. The CFMEU is liable for Mr Davies' and Mr Tadic's contraventions of s 500 as an...

Court Disposition

Liability found for contraventions of ss 497 (Mr Davies) and 500 (Mr Davies, Mr Tadic); CFMEU liable for officers’ contraventions of s 500 via s 550. Relief, including penalties, reserved for future hearing.

Orders

  • Further hearing of the application be listed at 10.15 am on 26 March 2018.
  • On or before 9 March 2018 the applicant file and serve any affidavits and an outline of written submissions on penalties and other relief sought.