Fair Work Ombudsman v Rielly [2023] FCA 1144

Fair Work Ombudsman v Rielly [2023] FCA 1144

The escort requirement had to be construed consistently with its work health and safety purpose. Being "accompanied" required more than physical proximity and involved an element of escorting, going along with, joining and being in the company of a fully inducted SWC representative who knew of the responsibility to accompany the visitor. The first respondent was unaccompanied for approximately 2.5 hours, deliberately failed to comply with the requirement, and thereby acted in an improper manner contrary to s 500 of the Fair Work Act 2009 (Cth). The CFMMEU was liable by operation of ss 550(2)(c) and 793(1). Having regard to the seriousness, risks, admissions, deterrence, and the CFMMEU's...

Jurisdiction
Australia
Judgment Date
26 September 2023
Procedural Posture
Civil Penalty Proceeding for Contravention of S 500 of the Fair Work Act 2009 (cth) / Penalty Hearing After Admissions of Liability; Declarations Sought by Consent
Outcome
Declarations made by consent; pecuniary penalties imposed on the first and third respondents; non-indemnification order refused.
Legal Topics
['pecuniary Penalties' 'right of Entry' 'permit Holder Conduct' 'improper Manner' 'site Escort Requirement' 'non Indemnification Order']
['industrial Law' 'employment and Industrial Relations' 'work Health and Safety'] ['pecuniary Penalties' 'right of Entry' 'permit Holder Conduct' 'improper Manner' 'site Escort Requirement' 'non Indemnification Order']

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Procedural Posture

Civil Penalty Proceeding for Contravention of S 500 of the Fair Work Act 2009 (cth) / Penalty Hearing After Admissions of Liability; Declarations Sought by Consent

Legal Issues

  1. 1 ['Whether the first respondent was unaccompanied within the meaning of the site requirement to be accompanied by a fully inducted Seymour Whyte Constructions Pty Ltd representative at all times.' 'What pecuniary penalties were appropriate for the first respondent and the third respondent for contraventions of s 500 of the Fair Work Act 2009 (Cth).' 'Whether declarations should be made in the terms sought by the applicant.' 'Whether a non-indemnification order should be made against the first respondent.']

Ratio Decidendi

The escort requirement had to be construed consistently with its work health and safety purpose. Being "accompanied" required more than physical proximity and involved an element of escorting, going along with, joining and being in the company of a fully inducted SWC representative who knew of the responsibility to accompany the visitor. The first respondent was unaccompanied for approximately 2.5 hours, deliberately failed to comply with the requirement, and thereby acted in an improper manner contrary to s 500 of the Fair Work Act 2009 (Cth). The CFMMEU was liable by operation of ss 550(2)(c) and 793(1). Having regard to the seriousness, risks, admissions, deterrence, and the CFMMEU's...

Court Disposition

Declarations made by consent; pecuniary penalties imposed on the first and third respondents; non-indemnification order refused.

Orders

  • ['The Court declares by consent that, in contravention of s 500 of the Fair Work Act 2009 (Cth), the first respondent acted in an improper manner on 23 April 2021 by failing to comply with a site requirement that applied to the project known as the "Pacific Motorway Upgrade VL2B Project" located on and around the M1...