Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15

On the trial judge’s findings, Mr Tadic’s conduct—including disregard for reasonable requests, use of loud and coarse language, and sarcastic personal remarks—breached the standard of propriety expected of a permit holder, constituting a contravention of s 500 of the Fair Work Act 2009 (Cth); the contextual factors relied on by the trial judge do not excuse the conduct. The appeal is allowed and the matter remitted for determination of penalty and liability of the union under ss 550 and 793 and common law vicarious liability.

Parties
Appellant: Australian Building and Construction Commissioner; First Respondent: Construction, Forestry, Mining and Energy Union; Second Respondent: Alex Tadic
Jurisdiction
Australia
Judgment Date
12 February 2018
Procedural Posture
Appeal / Appellate Judgment
Outcome
appeal allowed
Legal Topics
Right of Entry, Union Officials Conduct, Workplace Safety, Vicarious Liability
Industrial Law Employment Law Right of Entry Union Officials Conduct Workplace Safety Vicarious Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Australian Building and Construction Commissioner

Appellant

Construction, Forestry, Mining and Energy Union

First Respondent

Alex Tadic

Second Respondent

Procedural Posture

Appeal / Appellate Judgment

Legal Issues

  1. 1 Did the permit holder act in an improper manner within the meaning of s 500 of the Fair Work Act 2009 (Cth)?
  2. 2 Did the trial judge err in law by not finding that the permit holder acted improperly?
  3. 3 Were contextual factors relevant to the assessment of impropriety?

Ratio Decidendi

On the trial judge’s findings, Mr Tadic’s conduct—including disregard for reasonable requests, use of loud and coarse language, and sarcastic personal remarks—breached the standard of propriety expected of a permit holder, constituting a contravention of s 500 of the Fair Work Act 2009 (Cth); the contextual factors relied on by the trial judge do not excuse the conduct. The appeal is allowed and the matter remitted for determination of penalty and liability of the union under ss 550 and 793 and common law vicarious liability.

Court Disposition

appeal allowed

Orders

  • The appeal is allowed.
  • The orders made by the trial judge are set aside.