Fair Work Ombudsman v Brook [2024] FCA 262

Fair Work Ombudsman v Brook [2024] FCA 262

By entering the construction site and moving around it without being escorted by Synergy personnel, Mr Brook failed to comply with the Synergy Visitors Policy, which was a reasonable occupational health and safety requirement, and thereby contravened s 499 of the Fair Work Act 2009 (Cth). The same conduct was improper conduct while exercising right of entry powers and contravened s 500. The CFMEU was involved in those contraventions through attribution of Mr Brook's conduct and state of mind and was liable under s 550. Pecuniary penalties were necessary for deterrence, but declaratory relief was declined because it would add no meaningful consequence beyond the findings and penalties.

Jurisdiction
Australia
Judgment Date
18 March 2024
Procedural Posture
Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) / Final Judgment and Orders After Hearing on Agreed Contraventions and Penalty Ranges
Outcome
Civil penalties imposed on both respondents; declaratory relief declined; no costs order sought or made.
Legal Topics
['right of Entry' 'permit Holder Obligations' 'occupational Health and Safety Requirements' 'improper Conduct' 'civil Penalties' 'accessorial Liability' 'declaratory Relief' 'civil Double Jeopardy']
['industrial Law' 'employment and Industrial Relations'] ['right of Entry' 'permit Holder Obligations' 'occupational Health and Safety Requirements' 'improper Conduct' 'civil Penalties' 'accessorial Liability' 'declaratory Relief' 'civil Double Jeopardy']

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Procedural Posture

Civil Penalty Proceeding Under the Fair Work Act 2009 (cth) / Final Judgment and Orders After Hearing on Agreed Contraventions and Penalty Ranges

Legal Issues

  1. 1 ['Whether Mr Brook contravened ss 499 and 500 of the Fair Work Act 2009 (Cth) by entering and moving around the Site without complying with the Synergy Visitors Policy.' "Whether the CFMEU was liable as an accessory to Mr Brook's contraventions under s 550 of the Fair Work Act 2009 (Cth), including by operation of s 793." 'Whether declaratory relief should be granted in addition to pecuniary penalties.' "What pecuniary penalties were appropriate for the respondents' contravening conduct."]

Ratio Decidendi

By entering the construction site and moving around it without being escorted by Synergy personnel, Mr Brook failed to comply with the Synergy Visitors Policy, which was a reasonable occupational health and safety requirement, and thereby contravened s 499 of the Fair Work Act 2009 (Cth). The same conduct was improper conduct while exercising right of entry powers and contravened s 500. The CFMEU was involved in those contraventions through attribution of Mr Brook's conduct and state of mind and was liable under s 550. Pecuniary penalties were necessary for deterrence, but declaratory relief was declined because it would add no meaningful consequence beyond the findings and penalties.

Court Disposition

Civil penalties imposed on both respondents; declaratory relief declined; no costs order sought or made.

Orders

  • ['The first respondent pay a pecuniary penalty totalling $4,500.00.' 'The second respondent pay a pecuniary penalty totalling $40,000.00.' 'The penalties referred to in orders 1 to 2 above be paid to the Commonwealth within 28 days.']