Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case)

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 24 November 2020
• Neutral Citation: [2020] FCAFC 203
• Date: 24 November 2020

Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203

Appeal from:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737
File number:	QUD 712 of 2019
Judgment of:	REEVES, CHARLESWORTH AND O'CALLAGHAN JJ
Date of judgment:	24 November 2020
Catchwords:	INDUSTRIAL LAW – right of entry – entry by union officials under s 81(3) of the Work Health and Safety Act 2011 (Qld) – whether exercise of “State or Territory OHS right” within meaning of s 494 of the Fair Work Act 2009 (Cth) – Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470 applied ; INDUSTRIAL LAW – accessorial liability for contraventions of ss 494(1), 497 and 500 of the Fair Work Act 2009 (Cth) – conduct and state of mind of officials imputed to union under s 793 of the Fair Work Act 2009 (Cth) – whether union thereby knowingly concerned in officials’ contraventions within the meaning of s 550 of the Fair Work Act 2009 (Cth)
Legislation:	Fair Work Act 2009 (Cth) Occupational Health and Safety Act 2004 (Vic) Work Health and Safety Act 2011 (Qld)
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Footscray Station Case) (2017) 274 IR 460; [2017] FCA 1555 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 357 ALR 199; [2018] FCA 122 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) [2018] FCA 1081 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 Australian Building and Construction Commissioner v Harris [2017] FCA 733 Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393; [2017] FCA 797 Australian Building and Construction Commissioner v O’Connor (No 3) [2018] FCA 43 Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470; [2017] FCAFC 89 Australian Building and Construction Commissioner v Upton (2017) 270 IR 190; [2017] FCA 847 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528; [2017] FCAFC 77 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra’s Edge Case) [2016] FCA 772 Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338; [2016] FCA 525 EZY Accounting 123 Pty Ltd (ACN 105 317 691) v Fair Work Ombudsman (2018) 360 ALR 261; [2018] FCAFC 134 Forbes v Petbarn Pty Ltd [2018] FCA 256 Hamilton v Whitehead (1988) 166 CLR 121 Mallan v Lee (1949) 80 CLR 198 Yorke v Lucas (1985) 158 CLR 661
Division:
Registry:
National Practice Area:
Number of paragraphs:	55
Date of hearing:	6 August 2020
Counsel for the Appellants:	Mr R Reitano with Mr P Boncardo
Solicitor for the Appellants:	Hall Payne Lawyers
Counsel for the First Respondent:	Mr C Murdoch QC with Mr M Follett
Solicitor for the First Respondent:	Ashurst Australia
Counsel for the Second Respondent:	Mr A Duffy QC
Solicitor for the Second Respondent:	Crown Law

ORDERS

		QUD 712 of 2019
BETWEEN:	CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Appellant ; KURT PAULS Second Appellant ; BEAU SEIFFERT (and others named in the Schedule) Third Appellant
AND:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER First Respondent ; MINISTER FOR EDUCATION AND MINISTER FOR INDUSTRIAL RELATIONS OF QUEENSLAND Second Respondent

order made by:	REEVES, CHARLESWORTH AND O'CALLAGHAN JJ
DATE OF ORDER:	24 November 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES AND O’CALLAGHAN JJ:

INTRODUCTION

1. The appellants seek to set aside certain declarations of contravention of several of the “right of entry” provisions in Part 3-4 of the Fair Work Act 2009 (Cth) (FW Act) made by a judge of this Court.

2. Although the notice of appeal contained five grounds, the appeal was conducted on the basis that two questions of law arise, viz:

1. does s 81(3) of the Work Health and Safety Act 2011 (Qld) (the WHS Act) confer a “right to enter premises” within the meaning of s 494(2) of the FW Act; and

2. if so, can the first appellant (the CFMMEU) be “knowingly concerned in” a contravention of a provision of the FW Act within the meaning of s 550(2) of that Act solely by means of statutory attribution under s 793 of the conduct and state of mind of an officer of the CFMMEU necessary to establish that officer’s principal contravention of the same provision?

3. The primary judge answered both questions in the affirmative.

4. For the reasons given below, the primary judge was correct to do so and the appeal will be dismissed.

THE FACTS

5. The relevant facts were admitted. It is not necessary for the purposes of addressing the two legal issues raised on appeal to rehearse them in any detail.

6. It suffices to say that Fulton Hogan Construction Pty Ltd and Seymour Whyte Constructions Pty Ltd had formed an unincorporated joint venture to construct and deliver various upgrades to the Bruce Highway between Caloundra Road and the Sunshine Coast Motorway in Queensland (the Site). Each of them occupied or otherwise controlled the Site.

7. Between 8 March and 18 April 2018, the second to eighth appellants (collectively, the individual appellants), each of whom was an officer of the CFMMEU, entered the Site and engaged in various activities there. They admit that they did so pursuant to s 81(3) of the WHS Act.

8. The first respondent (the Commissioner) alleged various contraventions of ss 494(1), 497 and 500 of the FW Act by the individual appellants. The Commissioner further alleged that, under s 550 of the FW Act, the CFMMEU was taken to have contravened each of those provisions, by reason of the operation of s 793 of the FW Act.

9. The second appellant, Mr Pauls, was found to have contravened s 494(1) of the FW Act when he exercised a “State or Territory OHS right” in circumstances where he was not a permit holder within the meaning of the FW Act. All the other individual appellants, other than Mr Albert, that is Messrs Seiffert, Hynes, Gibson, Parfitt and Kupsch, were found to have contravened s 497 of the FW Act (by continuing to exercise a State or Territory OHS right after having refused a lawful request by the occupier of the Site to produce a federal entry permit for inspection) and s 500 of the FW Act (in various different respects, including by refusing requests to produce entry permits and to leave the Site). Mr Albert, the fourth appellant, was found only to have contravened s 497.

10. The CFMMEU’s liability was premised on it being “knowingly concerned” in the individual appellants’ contraventions for the purposes of s 550(2)(c) of the FW Act.

11. The second respondent is the Minister for Education and Minister for...