Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Pacific Highway Upgrade Case) [2023] FCA 202

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Pacific Highway Upgrade Case) [2023] FCA 202

The appeal was dismissed because the primary judge did deal in substance with the appellants' submission about intention. Reading the reasons as a whole, the primary judge considered the evidence with that submission in mind, rejected the factual foundation for the asserted safety justification, accepted evidence that the truck was stationary and that a spotter was in place, and found that the union officials deliberately positioned themselves behind the concrete agitator and refused to move when asked, thereby preventing the concrete pour from continuing. The challenged submission concerned the officials' motives rather than the relevant intention, and the Commissioner was not required...

Jurisdiction
Australia
Judgment Date
13 March 2023
Procedural Posture
Appeal in the Fair Work Division Concerning Contraventions of S 500 of the Fair Work Act 2009 (cth) / Appeal From ABCC V CFMEU (pacific Highway Upgrade Case) (no 3) [2022] Fed Cfam C2 G 388
Outcome
Appeal dismissed; no order as to costs.
Legal Topics
['right of Entry' 'intentional Hindrance or Obstruction' 'adequacy of Reasons' 'work Health and Safety' 'civil Remedy Provisions']
['industrial Law' 'employment and Industrial Relations'] ['right of Entry' 'intentional Hindrance or Obstruction' 'adequacy of Reasons' 'work Health and Safety' 'civil Remedy Provisions']

Case Brief

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Procedural Posture

Appeal in the Fair Work Division Concerning Contraventions of S 500 of the Fair Work Act 2009 (cth) / Appeal From ABCC V CFMEU (pacific Highway Upgrade Case) (no 3) [2022] Fed Cfam C2 G 388

Legal Issues

  1. 1 ["Whether the primary judge erred by failing to deal with the appellants' central submission that the union officials intended only to ensure that the workplace was safe and did not intend to hinder or obstruct work." "Whether the primary judge's findings that the appellants contravened s 500 of the Fair Work Act 2009 (Cth) were unsustainable because of that alleged failure." 'Whether any failure to deal with the submission would warrant remittal.']

Ratio Decidendi

The appeal was dismissed because the primary judge did deal in substance with the appellants' submission about intention. Reading the reasons as a whole, the primary judge considered the evidence with that submission in mind, rejected the factual foundation for the asserted safety justification, accepted evidence that the truck was stationary and that a spotter was in place, and found that the union officials deliberately positioned themselves behind the concrete agitator and refused to move when asked, thereby preventing the concrete pour from continuing. The challenged submission concerned the officials' motives rather than the relevant intention, and the Commissioner was not required...

Court Disposition

Appeal dismissed; no order as to costs.

Orders

  • ['The appeal be dismissed.' 'No order as to costs.']