Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Cross River Rail Appeal) [2024] FCAFC 1

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Cross River Rail Appeal) [2024] FCAFC 1

The occupational health and safety requirements imposed by documented policies were valid requirements under s 499 of the Fair Work Act 2009 (Cth), even if not uniformly enforced. However, the requirement that the permit holder be escorted was not adequately pleaded or established. The primary judge's findings as to some breaches and penalties could not stand, justifying variation of declarations and setting aside of penalty orders. Pecuniary penalties are to be redetermined.

Parties
Appellant: Construction, Forestry, Maritime, Mining and Energy Union; Appellant: Dean Lesley Rielly; Respondent: Fair Work Ombudsman
Jurisdiction
Australia
Judgment Date
29 January 2024
Procedural Posture
Appeal / Appeal Judgment
Outcome
Appeal allowed in part
Legal Topics
Right of Entry, Occupational Health and Safety Requirements, Civil Penalties, Permit Holder Conduct, Reasonable Request Assessment
Industrial Law Employment Law Right of Entry Occupational Health and Safety Requirements Civil Penalties Permit Holder Conduct Reasonable Request Assessment

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Parties

Construction, Forestry, Maritime, Mining and Energy Union

Appellant

Dean Lesley Rielly

Appellant

Fair Work Ombudsman

Respondent

Procedural Posture

Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether visitor entry and conduct requirements were occupational health and safety requirements for the purposes of s 499 of the Fair Work Act 2009 (Cth)
  2. 2 Whether breach of s 500 of the Fair Work Act 2009 (Cth) occurred
  3. 3 Whether penalty assessment was valid given partial success on appeal

Ratio Decidendi

The occupational health and safety requirements imposed by documented policies were valid requirements under s 499 of the Fair Work Act 2009 (Cth), even if not uniformly enforced. However, the requirement that the permit holder be escorted was not adequately pleaded or established. The primary judge's findings as to some breaches and penalties could not stand, justifying variation of declarations and setting aside of penalty orders. Pecuniary penalties are to be redetermined.

Court Disposition

Appeal allowed in part

Orders

  • Declarations made in the Federal Circuit and Family Court of Australia (Division 2) on 21 February 2023 are varied by deleting paragraph B, subparagraph (b)(i).
  • Orders made in Federal Circuit and Family Court of Australia (Division 2) on 29 June 2023 are set aside.