Fair Work Ombudsman v Roach (The Melbourne Quarter Case)

• Jurisdiction: Australia Federal only
• Judgment Date: 03 March 2023
• Neutral Citation: [2023] FCA 156
• Date: 03 March 2023
• Court: Federal Court

Federal Court of Australia

Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 156

File number:	VID 23 of 2021
Judgment of:	WHEELAHAN J
Date of judgment:	3 March 2023
Catchwords:	INDUSTRIAL LAW – alleged contraventions of ss 348 and 349 of the Fair Work Act 2009 (Cth) by union and union representative at the site of the Melbourne Quarter project – applicant claimed that the representative told a caulking subcontractor during a site induction that the subcontractor could not work on the site unless he paid outstanding union fees – where evidence of key witnesses differed as to what was said during the induction – examination of contested evidence – evidence of the employees of the subcontractor generally accepted – contraventions established
Legislation:	Evidence Act 1995 (Cth) ss 64(4), 97, 140 Fair Work Act 2009 (Cth) ss 336, 343, 345 347, 348, 349, 361, 361, 701, 793 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), Schedule 1, Part 3, item 323
Cases cited:	Adcock v Blackmores Ltd [2016] FCCA 265; 259 IR 209 Adcock v Blackmores Ltd [2016] FCA 893 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) [2017] FCA 1398 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Syme Library Case) [2018] FCA 1142 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; 277 FCR 223 Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 1)[2021] FCA 1153 Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 2) [2021] FCA 1210 Australian Federation of Air Pilots v Regional Express Holdings Ltd[2021] FCAFC 226; 290 FCR 239 Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; 273 FCR 332 Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268 Banditt v The Queen [2005] HCA 80; 224 CLR 262 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Broadhurst v The Queen [1964] AC 441 Browne v Dunn (1893) 6 R 67 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission[2007] FCAFC 132; 162 FCR 466 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 Esso v Australian Workers’ Union [2017] HCA 54; 263 CLR 551 Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 Fox v Percy [2003] HCA 22; 214 CLR 118 Harris v Warre (1879) 4 CPD 125 Newton v Australian Postal Corporation (No 2)[2019] FCA 2192; 292 IR 396 R v Jovanovich (1997) 42 NSWLR 520 R v Uhrig (unreported, NSW Court of Criminal Appeal, 24 October 1996) Seltsam v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana)(1924) 20 Ll L Rep 140 State Rail Authority of New South Wales v Earthline Constructions Ltd (in liq) [1999] HCA 3; 160 ALR 588 Swain v Waverley Municipal Council[2005] HCA 4; 220 CLR 517 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 Watson v Foxman (1995) 49 NSWLR 315
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	245
Date of hearing:	21-23 September, 4-7 October 2021
Counsel for the Applicant:	Mr M Follett
Solicitor for the Applicant:	Lander & Rogers
Counsel for the Respondents:	Mr P Boncardo and Ms E Beljic
Solicitor for the Respondents:	Maurice Blackburn

ORDERS

		VID 23 of 2021
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	JASON ROACH First Respondent ; CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Second Respondent

order made by:	WHEELAHAN J
DATE OF ORDER:	3 March 2023

THE COURT ORDERS THAT:

1. By 4.00 pm on 17 March 2023, the practitioners for the parties are to confer and submit to the Chambers of the Hon Justice Wheelahan via email proposed draft orders in relation to the further conduct and disposition of this proceeding.

2. If the parties are unable to agree on a single form of draft orders, then by 4.00 pm on 17 March 2023, each party is to submit their respective proposed draft orders.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The applicant seeks declarations and the imposition of civil penalties in respect of claimed contraventions by the respondents of s 348 and s 349 of the Fair Work Act 2009 (Cth) (FW Act). The proceeding was commenced by the Australian Building and Construction Commissioner as applicant. On 12 December 2022, and following the commencement of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), Schedule 1, Part 3, item 323, by order of the Court the name of the applicant was changed to the Fair Work Ombudsman who by operation of item 323 was substituted for the Commissioner as a party to the proceeding. See alsoFW Act, s 701, which provides that the Fair Work Ombudsman is a Fair Work Inspector.

2. The respondents are, first, Mr Roach, who was at the relevant time employed by Lendlease Building Contractors Pty Ltd (Lendlease). Lendlease was engaged in the construction of a development at Docklands in Melbourne known as the Melbourne Quarter project. Mr Roach was a health and safety representative at the site, and was a delegate of the second respondent, the Construction, Forestry, Maritime, Mining and Energy Union (the Union).

3. The essence of the applicant’s case relates to two individuals, Mr Brendon Watterston and Mr Stephan Simone, who attended the site on 20 April 2020 to undertake caulking work. The case turns on what was said by Mr Roach to Mr Watterston on site on that day in one conversation. The applicant alleges that following an induction at the site conducted by Lendlease, Mr Roach threatened to prevent, or prevented, Mr Watterston from working at the site on that day on the ground that he had not paid a fee of about $500 that was claimed to be due to the Union. The applicant also alleges that by his words and conduct Mr Roach represented to Mr Watterston that in order to perform work on the project, he had to pay membership subscriptions, levies, or dues to the Union. Mr Roach and the Union deny the applicant’s claims.

4. As a result of Covid-19 related restrictions,...