Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2017] FCAFC 77

Leave to raise new arguments on appeal was refused: the proceedings at first instance were conducted on different bases, and to permit new arguments concerning exercise of right/power, notice of entry, or vicarious liability would prejudice the respondent and not be in the interests of justice; the argument under Jones v Dunkel was also rejected as findings would have been the same without any such inference.

Jurisdiction
Australia
Judgment Date
17 May 2017
Procedural Posture
Appeal / Judgment After Hearing of Appeal
Outcome
Appeal dismissed.
Legal Topics
['right of Entry' 'leave to Raise New Arguments on Appeal' 'vicarious Liability' 'application of Jones V Dunkel' 'fair Work Compliance']
['industrial Law' 'employment & Industrial Relations'] ['right of Entry' 'leave to Raise New Arguments on Appeal' 'vicarious Liability' 'application of Jones V Dunkel' 'fair Work Compliance']

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Procedural Posture

Appeal / Judgment After Hearing of Appeal

Legal Issues

  1. 1 ["Whether a failure to provide an occupier notice of entry renders a right not 'in accordance' with Part 3-4 of the Fair Work Act 2009 (Cth)" 'Whether entries to premises were by exercise of a right or a power and the effect on s 500 contraventions' 'Vicarious liability of the CFMEU for acts of individual officials under s 793 of the Fair Work Act' 'Application of Jones v Dunkel relevant to inferences from failure to call witnesses']

Ratio Decidendi

Leave to raise new arguments on appeal was refused: the proceedings at first instance were conducted on different bases, and to permit new arguments concerning exercise of right/power, notice of entry, or vicarious liability would prejudice the respondent and not be in the interests of justice; the argument under Jones v Dunkel was also rejected as findings would have been the same without any such inference.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.']