Darlaston v Parker [2010] FCA 771

Darlaston v Parker [2010] FCA 771

The court found that several individual union officials (respondents) contravened s 758(3) by failing to comply with occupational health and safety requirements (such as undergoing site inductions and following requests regarding site safety), and that one respondent intentionally hindered or obstructed work contrary to s 767(1) by instructing workers to cease work. The court found a further contravention by another respondent for acting 'in an improper manner' by driving a vehicle into a site gate endangering an employee. The entities (CFMEU and CFMEU NSW) were also found liable for those contraventions via s 826(2). Other alleged contraventions, including improper purpose, were not made...

Parties
Applicant: PETER DARLASTON; First Respondent: BRIAN PARKER; Second Respondent: REBEL HANLON; Third Respondent: ROBERT KERA; Fourth Respondent: THOMAS MITCHELL; Fifth Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION; Sixth Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)
Jurisdiction
Australia
Judgment Date
23 July 2010
Procedural Posture
Civil (industrial Law – Penalty Proceedings) / Liability Determination (penalties and Declaratory Relief Stood Over)
Outcome
Liability established for certain contraventions; relief and penalties stood over; costs reserved.
Legal Topics
Right of Entry on Work Sites, Civil Penalty Provisions, Occupational Health and Safety Site Requirements, Hindrance and Obstruction of Work, Privilege Against Self Incrimination, Standard of Proof in Penalty Proceedings
Industrial Law Occupational Health and Safety Evidence Law Right of Entry on Work Sites Civil Penalty Provisions Occupational Health and Safety Site Requirements Hindrance and Obstruction of Work Privilege Against Self Incrimination +1 more

Case Brief

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Parties

PETER DARLASTON

Applicant

BRIAN PARKER

First Respondent

REBEL HANLON

Second Respondent

ROBERT KERA

Third Respondent

THOMAS MITCHELL

Fourth Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Fifth Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH)

Sixth Respondent

Procedural Posture

Civil (industrial Law – Penalty Proceedings) / Liability Determination (penalties and Declaratory Relief Stood Over)

Legal Issues

  1. 1 Whether permit holders contravened s 758(3) of the Workplace Relations Act 1996 (Cth) by failing to comply with occupational health and safety requests on entry to premises
  2. 2 Whether conduct amounted to intentional hindrance or obstruction or acting in an improper manner contrary to s 767(1) of the Workplace Relations Act 1996 (Cth)
  3. 3 Whether trade union officials exercised rights of entry for improper purposes

Ratio Decidendi

The court found that several individual union officials (respondents) contravened s 758(3) by failing to comply with occupational health and safety requirements (such as undergoing site inductions and following requests regarding site safety), and that one respondent intentionally hindered or obstructed work contrary to s 767(1) by instructing workers to cease work. The court found a further contravention by another respondent for acting 'in an improper manner' by driving a vehicle into a site gate endangering an employee. The entities (CFMEU and CFMEU NSW) were also found liable for those contraventions via s 826(2). Other alleged contraventions, including improper purpose, were not made...

Court Disposition

Liability established for certain contraventions; relief and penalties stood over; costs reserved.

Orders

  • The proceeding is stood over for further directions at 9:30 am on 30 July 2010 with a view to then giving directions and fixing a date for the hearing as to the making of further orders as to the quantum of any penalties to be imposed and the making of such declaratory relief as is appropriate.
  • The costs of the proceeding to date are reserved.