Federal Circuit and Family Court of Australia
(DIVISION 2)
ABCC v CEPU [2022] FedCFamC2G 365
File number(s): BRG 344 of 2020 Judgment of: JUDGE VASTA Date of judgment: 17 May 2022 Catchwords: INDUSTRIAL LAW – Contraventions of s 499 and s 500 of FW Act – where Second Respondent exercising rights pursuant to s. 117 of WHS Act (Qld) – where requests made – whether requests were OHS requirements – whether OHS requirements applied to the premises – whether requests were reasonable – whether there was non-compliance by Second Respondent – whether the actions of the Second Respondent were improper Legislation: Fair Work Act 2009 (Cth): s 499, s 500, s 512
Work Health and Safety 2011 (Qld): s 29, s 81, s 117, s 119, s 132
Cases cited: ABCC v Collier & Ors [2019] FCCA 650
Director of Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668
Division: Division 2 General Federal Law Number of paragraphs: 248 Date of last submission/s: 4 May 2022 Date of hearing: 29,30, 31 March and 4 May 2022 Place: Brisbane Counsel for the Applicant: Mr Follett Solicitor for the Applicant: Minter Ellison Counsel for the Respondents: Mr White Solicitor for the Respondents: Hall Payne Lawyers ORDERS
BRG 344 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
First Respondent
DANIEL BESSELL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
17 May 2022
UPON THE COURT FINDING THAT:
A.The Second Respondent contravened s 499 of the Fair Work Act 2009 (Cth) (“the FW Act”) when he refused to comply with the reasonable requests by Mr Waters (and Mr Mullins) and walked to DB1.
B.The Second Respondent contravened s 499 of the FW Act when he refused to comply with the reasonable requests by Mr Waters (and Mr Mullins) and walked to DB3.
C.The Second Respondent contravened s 500 of the FW Act when he attempted to exercise his rights pursuant to s 117 of the Work Health and Safety Act 2011 (Qld) and acted in an improper manner.
D.The First Respondent contravened s 499 of the FW Act and s 500 of the FW Act on each occasion on which the Second Respondent contravened those sections of the FW Act.
THE COURT ORDERS THAT:
1.The matter be adjourned to a date to be fixed for a penalty hearing in the Federal Circuit and Family Court of Australia sitting at Brisbane.
2.The parties are to provide suitable dates for penalty hearing and directions for the conduct of the penalty hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g)
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Details
- Case
- [2022] FedCFamC2G 365
- Decision Date
CaseChat Overview and Summary
In the case of ABCC v CEPU, the Australian Building and Construction Commission (ABCC) brought proceedings against the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and one of its organisers, the Second Respondent. The dispute centred on whether the Second Respondent's conduct on a construction site contravened the Fair Work Act 2009 (Cth) (FW Act), and if so, whether CEPU had also contravened the Act. The Court had to determine if the Second Respondent's actions, including refusing to comply with reasonable requests to follow site safety protocols and walking towards a distribution board without accompaniment, constituted breaches of the FW Act. Additionally, the Court had to consider whether CEPU, as the Second Respondent's employer, was vicariously liable for these breaches.
The primary legal issues revolved around the interpretation and application of sections 499 and 500 of the FW Act. Section 499 pertains to the requirement for union officials to comply with reasonable requests to accompany others when exercising their rights under the FW Act, while Section 500 addresses the manner in which these rights must be exercised. The Court had to assess whether the Second Respondent's actions were reasonable under the circumstances and whether his conduct was improper. Furthermore, the Court needed to determine if CEPU could be held responsible for the Second Respondent's actions under the vicarious liability provisions of the FW Act.
The Court found that the Second Respondent contravened sections 499 and 500 of the FW Act. The Second Respondent refused to comply with reasonable requests to follow site safety protocols and walked towards a distribution board without accompaniment, which constituted a breach of section 499. Additionally, the Second Respondent's actions in attempting to exercise his rights under the Work Health and Safety Act 2011 (Qld) in an improper manner contravened section 500. Consequently, the Court held that CEPU was vicariously liable for the Second Respondent's breaches of the FW Act under section 550. The Court allowed the parties to formulate declarations and set a date for a penalty hearing.
In conclusion, the Court found that the Second Respondent contravened sections 499 and 500 of the FW Act and that CEPU was vicariously liable for these breaches. The Court's decision established that CEPU was responsible for the actions of its organiser on the construction site and highlighted the importance of complying with safety protocols and exercising rights in a proper manner. The matter was adjourned for a penalty hearing to determine appropriate penalties for the contraventions.
The primary legal issues revolved around the interpretation and application of sections 499 and 500 of the FW Act. Section 499 pertains to the requirement for union officials to comply with reasonable requests to accompany others when exercising their rights under the FW Act, while Section 500 addresses the manner in which these rights must be exercised. The Court had to assess whether the Second Respondent's actions were reasonable under the circumstances and whether his conduct was improper. Furthermore, the Court needed to determine if CEPU could be held responsible for the Second Respondent's actions under the vicarious liability provisions of the FW Act.
The Court found that the Second Respondent contravened sections 499 and 500 of the FW Act. The Second Respondent refused to comply with reasonable requests to follow site safety protocols and walked towards a distribution board without accompaniment, which constituted a breach of section 499. Additionally, the Second Respondent's actions in attempting to exercise his rights under the Work Health and Safety Act 2011 (Qld) in an improper manner contravened section 500. Consequently, the Court held that CEPU was vicariously liable for the Second Respondent's breaches of the FW Act under section 550. The Court allowed the parties to formulate declarations and set a date for a penalty hearing.
In conclusion, the Court found that the Second Respondent contravened sections 499 and 500 of the FW Act and that CEPU was vicariously liable for these breaches. The Court's decision established that CEPU was responsible for the actions of its organiser on the construction site and highlighted the importance of complying with safety protocols and exercising rights in a proper manner. The matter was adjourned for a penalty hearing to determine appropriate penalties for the contraventions.
Orders
Orders of the court
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Background
Background to the litigation
The issue for this Court to determine is whether that behaviour of the Second Respondent contravened the Fair Work Act 2009 (Cth) (the FW Act) and, if so, whether the First Respondent, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”), had therefore also contravened the FW Act.Background The Hedge construction project involved the construction of a six level residential and commercial development. There were to be 95 residential apartments and five commercial shop tenancies built at the site. The site was located at 1-5 Bermagui Crescent at Buddina on the Sunshine Coast. RGB Constructions Pty Ltd were the principal contractor for this project and Nigel Waters was the project manager overseeing the project for the contractor. The site fronted both Bermagui Crescent and Lowanna Drive with the site office situated on the corner of Bermagui Crescent and Tumut Street. Construction began in October 2017. The construction was completed in December 2018. The Second Respondent is an organiser employed by the First Respondent. He has held this position since March 2009. His expertise is in the electrical trade and the members that he supports are electrical tradesmen. His role is to support members with disputes and disciplinary matters and to conduct safety inspections in workplaces that employ workers who are eligible to be members of his Union. He is also involved in negotiations for Enterprise Bargaining Agreements and he conducts meetings with members and recruits new members for the Union. Robert Gould is also an organiser employed by the First Respondent. He has been in that position since July 2013. His expertise is in the plumbing trade and he performs the same duties as the Second Respondent but with the emphasis on plumbing tradesmen.Legislative provisions Construction sites are dangerous for obvious reasons. Entry to construction sites is the purview of the owner of the site or the principal contractor and entry is controlled by them. However, the law allows exceptions to this rule which are governed by provisions of the FW Act. Section 512 of the FW Act provides thatThe FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit. The Queensland Parliament passed the Work Health and Safety Act 2011 (Qld) in 2011. That Act allows for entry on to construction sites by persons who have a WHS entry permit. Section 134 of the WHS Act allows for the Industrial Registrar to issue a WHS entry permit to a person if the Industrial Registrar has taken into account certain matters. Those matters include, pursuant to s 132, “the object of allowing union right of entry to workplaces for work health and safety purposes”. The Industrial Registrar is not permitted to issue a WHS entry permit to an official of a union unless the Industrial Registrar is satisfied that the official is an official of the union, has satisfactorily completed the prescribed training and holds an entry permit under the FW Act.
Evidence
Evidence Before The Court
As the group began to walk to the muster point/stretcher stairs, the Second Respondent stopped at a point perpendicular to the northern boundary of the construction site (I will refer to this location as the point of origin). He turned towards the first distribution board (known as DB1), which was along the northern boundary, and said “I want to look at that board”. This board was the same board that the Second Respondent had seen as he slowly drove past the site the day before. It was the basis for his belief that there had been a contravention of AS 3000/3012.Evidence of Mr Waters Mr Mullins responded to the Second Respondent with words to the effect “Let’s meet at the muster point and go through the issues, then we will look at them together”. The Second Respondent said “I want to look at the board now”. Mr Mullins said to the Second Respondent that “The board is 30 m away. What can you see from this far away that is such an immediate concern? We will go first to the muster point and go through the issues and then we can look at the board together”. The Second Respondent then walked away from the group and walked towards DB1. Mr Mullins called out to the Second Respondent and said “You are unaccompanied, please come back to the muster point, we will talk about the issues and then inspect them together”. The Second Respondent replied “No, I want to see this board”. As the Second Respondent walked away, Mr Mullins followed him telling him that he needed to return to the group. Mr Gould and Mr Davis then also followed the Second Respondent and Mr Mullins. Mr Waters also began to follow that group. The Second Respondent stopped when he reached DB1. Mr Gould and Mr Mullins reached the Second Respondent. Mr Davis then left the group and started walking to another part of the site without asking and also unaccompanied. Mr Waters followed Mr Davis and told him that he needed him to return to the muster point. Mr Davis then walked back to DB1 and Mr Waters and Mr Burr followed. Mr Waters said that when he reached DB1, the Second Respondent was inspecting the board and Mr Gould was looking at the sewer bypass. Mr Waters said that he then told the three organisers “Guys, this has become uncontrollable, you failed to remain accompanied with us and follow RGD policies, you’ve been uncooperative and abusive, if you fail to accompany us back to the muster point within five minutes, I’ll call the police”. The three men ignored Mr Waters with Mr Davis telling him that “I don’t give a fuck, call the police, I’ll wait here for them”. Mr Waters kept repeating that they all needed to go to the muster point. When the five minutes had elapsed and the men had not moved, Mr Waters said “The site walk is over. This is your last chance. You need to accompany us back to the muster point so we can escort you off site or we will call the police”. The Second Respondent refused and said that he was remaining where he was and he was going to continue to look at the distribution board. Mr Gould replied that he was going to keep looking at the sewer pit and asked about the approval that RGD had for the pit.
Decision
Reasons for decision
This means that the First Respondent was directly or indirectly knowingly concerned in the contraventions committed by the Second Respondent. Pursuant to s 550 of the FW Act, the First Respondent is taken to have contravened the FW Act on each occasion that the Second Respondent contravened the FW Act.Conclusion I find that the Second Respondent contravened s 499 of the FW Act when he refused to comply with the reasonable requests by Mr Waters (and Mr Mullins) and walked to DB1. I find that the Second Respondent contravened s 499 of the FW Act when he refused to comply with the reasonable requests by Mr Waters (and Mr Mullins) and walked to DB3. I find that the Second Respondent contravened s 500 of the FW Act when he attempted to exercise his rights pursuant to s 117 of the WHS Act and acted in an improper manner. There is no argument that these findings mean that the First Respondent has also contravened s 499 of the FW Act and s 500 of the FW Act on each occasion of which the Second Respondent contravened those sections of the FW Act. Having made those findings, I will allow the parties to formulate the wording of declarations that they wish me to make in accordance with these findings. I will adjourn the matter for a penalty hearing to a date I will fix upon delivery of these Reasons.
Ratio Decidendi
Legal Principle Established
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