Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164

Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164

The appeal failed because the primary judge correctly held that the pleaded constitutional basis did not establish a State or Territory OHS right in the car park, that the representatives' exercise of the statutory entry right ceased when they left the premises, that the temporary prevention of re-entry pending police attendance was a conditional delay that was prudent, short and not undue, and that the costs order under s 570 was open where the s 502 claims lacked reasonable cause.

Jurisdiction
Australia
Judgment Date
03 March 2014
Procedural Posture
Appeal From Federal Circuit Court of Australia Decisions Concerning Alleged Contraventions of the Fair Work Act 2009 (cth) and Costs / Appeal Dismissed
Outcome
Appeal dismissed.
Legal Topics
['right of Entry by Permit Holders' 'refusal or Undue Delay of Entry' 'hindering or Obstructing Permit Holders' 'state or Territory Occupational Health and Safety Rights' 'costs in Fair Work Act Proceedings' 'appellate Review of Discretionary Costs Orders']
['industrial Law' 'employment Law' 'costs'] ['right of Entry by Permit Holders' 'refusal or Undue Delay of Entry' 'hindering or Obstructing Permit Holders' 'state or Territory Occupational Health and Safety Rights' 'costs in Fair Work Act Proceedings' 'appellate Review of Discretionary Costs Orders']

Case Brief

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Procedural Posture

Appeal From Federal Circuit Court of Australia Decisions Concerning Alleged Contraventions of the Fair Work Act 2009 (cth) and Costs / Appeal Dismissed

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that no State or Territory OHS right was enlivened in connection with inspection of the concrete pump in the car park.' "Whether the primary judge erred in finding that the CFMEU representatives' exercise of rights of entry ceased when they left the premises." 'Whether the temporary prevention of re-entry pending police arrival amounted to a refusal of entry or undue delay under s 501 of the Fair Work Act 2009 (Cth).' "Whether the primary judge's discretion to award costs miscarried under s 570 of the Fair Work Act 2009 (Cth)."]

Ratio Decidendi

The appeal failed because the primary judge correctly held that the pleaded constitutional basis did not establish a State or Territory OHS right in the car park, that the representatives' exercise of the statutory entry right ceased when they left the premises, that the temporary prevention of re-entry pending police attendance was a conditional delay that was prudent, short and not undue, and that the costs order under s 570 was open where the s 502 claims lacked reasonable cause.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'Unless an application is made for costs within 14 days of the date of this order, there be no order as to the costs of the appeal.']