Construction Forestry Mining Energy Union v Bovis Lend Lease Pty Ltd [2008] FCA 1669

Construction Forestry Mining Energy Union v Bovis Lend Lease Pty Ltd [2008] FCA 1669

The Deed did not modify the BGS so as to prohibit the taking or electronic retention of workers' photographs. Objectively, before execution of the Deed the BGS included taking photographs, displaying them on swipe cards, and storing them in an electronic database. Clause 2.1(j), read with cll 2.1(h) and 2.1(i), limited access to and display of information, particularly on the card, but did not restrict collection of data. A reasonable person would therefore understand that Bovis could take worker photographs and retain them in a database linked to induction cards. The breach claim failed, the conceded s 38 claim did not need consideration, and the estoppel claim failed because no relevant...

Jurisdiction
Australia
Judgment Date
11 November 2008
Procedural Posture
Federal Court Proceeding Concerning Construction of a Deed of Release and Related Claims / Reasons for Judgment After Hearing; Matter Stood Over for Orders and Costs
Outcome
The Court held that the Deed permitted Bovis to require worker photographs to be taken and stored electronically, so the breach of Deed and estoppel claims failed; the matter was stood over for further orders and costs submissions.
Legal Topics
['settlement Agreements' 'construction of Deeds' 'extrinsic Evidence' 'mediation Confidentiality' 'equitable Estoppel' 'swipe Card Access System']
['contracts' 'industrial Law' 'equity'] ['settlement Agreements' 'construction of Deeds' 'extrinsic Evidence' 'mediation Confidentiality' 'equitable Estoppel' 'swipe Card Access System']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Federal Court Proceeding Concerning Construction of a Deed of Release and Related Claims / Reasons for Judgment After Hearing; Matter Stood Over for Orders and Costs

Legal Issues

  1. 1 ['Whether the Deed permitted Bovis to require workers to submit to photographs at induction, with photographs stored in a database linked to swipe cards.' 'Whether the Court could consider what the parties said or did during settlement negotiations or mediation when construing the Deed.' 'Whether Bovis was estopped from relying on the Deed because of alleged pre-execution conduct or representations.' 'Whether the photograph requirement constituted unlawful industrial action under s 38 of the Building and Construction Industry Improvement Act 2005 (Cth), if the Deed claim failed.']

Ratio Decidendi

The Deed did not modify the BGS so as to prohibit the taking or electronic retention of workers' photographs. Objectively, before execution of the Deed the BGS included taking photographs, displaying them on swipe cards, and storing them in an electronic database. Clause 2.1(j), read with cll 2.1(h) and 2.1(i), limited access to and display of information, particularly on the card, but did not restrict collection of data. A reasonable person would therefore understand that Bovis could take worker photographs and retain them in a database linked to induction cards. The breach claim failed, the conceded s 38 claim did not need consideration, and the estoppel claim failed because no relevant...

Court Disposition

The Court held that the Deed permitted Bovis to require worker photographs to be taken and stored electronically, so the breach of Deed and estoppel claims failed; the matter was stood over for further orders and costs submissions.

Orders

  • ['The matter be stood over to a date to be fixed.']