Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FCA 380

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FCA 380

Section 111(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) conferred authority on the ABCC to institute proceedings under the Fair Work Act 2009 (Cth) where the matter involved a building industry participant or building work. The Union was a building association and therefore a building industry participant because its rules allowed membership by building employees, even though it also had members not involved in building work. The provision was not to be read down so that the ABCC's standing depended on the alleged conduct involving building work. Accordingly, the ABCC had standing and the interlocutory application for summary dismissal was dismissed.

Jurisdiction
Australia
Judgment Date
26 April 2023
Procedural Posture
Industrial Relations Proceeding Concerning Alleged Contraventions of the Fair Work Act 2009 (cth), With an Interlocutory Application for Summary Dismissal / Trial of Preliminary Issue as to Standing
Outcome
Applicant found to have standing; interlocutory application for summary dismissal dismissed; no order as to costs of the preliminary issue.
Legal Topics
['standing of the Australian Building and Construction Commissioner' 'building and Construction Industry (improving Productivity) Act 2016 (cth) S 111(1)' 'fair Work Act 2009 (cth) Proceedings' 'summary Dismissal' 'substitution of Fair Work Ombudsman for Australian Building and Construction Commissioner']
['industrial Relations' 'employment and Industrial Relations' 'statutory Interpretation'] ['standing of the Australian Building and Construction Commissioner' 'building and Construction Industry (improving Productivity) Act 2016 (cth) S 111(1)' 'fair Work Act 2009 (cth) Proceedings' 'summary Dismissal' 'substitution of Fair Work Ombudsman for Australian Building and Construction Commissioner']

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Procedural Posture

Industrial Relations Proceeding Concerning Alleged Contraventions of the Fair Work Act 2009 (cth), With an Interlocutory Application for Summary Dismissal / Trial of Preliminary Issue as to Standing

Legal Issues

  1. 1 ['Whether the Australian Building and Construction Commissioner had standing under s 111(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) to commence proceedings against the respondents under the Fair Work Act 2009 (Cth).' 'Whether s 111(1) authorised proceedings where the matter involved a building industry participant, even if the alleged conduct did not involve building work.' "Whether the respondents' interlocutory application for summary dismissal should be dismissed."]

Ratio Decidendi

Section 111(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) conferred authority on the ABCC to institute proceedings under the Fair Work Act 2009 (Cth) where the matter involved a building industry participant or building work. The Union was a building association and therefore a building industry participant because its rules allowed membership by building employees, even though it also had members not involved in building work. The provision was not to be read down so that the ABCC's standing depended on the alleged conduct involving building work. Accordingly, the ABCC had standing and the interlocutory application for summary dismissal was dismissed.

Court Disposition

Applicant found to have standing; interlocutory application for summary dismissal dismissed; no order as to costs of the preliminary issue.

Orders

  • ['On the trial of the preliminary issue it be determined that the applicant has standing.' 'The interlocutory application for summary dismissal dated 12 April 2022 is dismissed.' 'There be no order as to the costs of the preliminary issue.']