ABCC v CFMEU (Pacific Highway Upgrade Case) (No 3)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ABCC v CFMEU (Pacific Highway Upgrade Case) (No 3) [2022] FedCFamC2G 388  

File number(s): SYG 2015 of 2020
Judgment of: JUDGE HUMPHREYS
Date of judgment: 23 May 2022 
Catchwords: INDUSTRIAL LAW – where Union Officials who held entry permits, entered a building site to inquire into suspected contraventions of work health and safety laws, whether officials intentionally hindered or obstructed Seymour Whyte Constructions Pty Ltd (SWC) and/or KFC Construction Pty Ltd (KFC) from completing a concrete pour at the site of the construction of bridge number 22 (known as the ‘A22’ site) located approximately 12 kilometres north of an SWC compound located off the Pacific Highway in or near Glenugie at the corner of Wants Lane and Avenue Road, approximately 10 kilometres south of Grafton (Project Site contrary to s 500 of the FW Act –  whether union liable for the conduct of its officials –  pecuniary penalties (to be determined) imposed.
Legislation:

Fair Work Act 2009 (Cth) ss 500, 550, 793,

Fair Work Bill 2008 (Cth)

Fair Work Regulations 2009 (Cth) reg 3.25

Work Health and Safety Act 2011 (NSW) s 117

Cases cited:

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case)  [2021] FCA 920

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473

BCG POS Pty Ltd v Construction, Forestry, Maritime, Mining & Energy Union (2019) 285 IR 43

Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64

Briginshaw v Briginshaw [1938] 60 CLR 336

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 302 IR 106

Darlston v Parker [2010] FCA 771

Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668

Jones v Dunkel (1959) 101 CLR 298

Manly Council v Byrne and Anor [2004] NSWCA 123

Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 740
Division: Division 2 General Federal Law
Number of paragraphs: 163
Date of last submission/s: 9 May 2022
Date of hearing: 9 May 2022
Place: Sydney
Counsel for the Applicant: Mr Chin SC and Ms Bulut
Counsel for the Respondents: Mr Latham
Solicitor for the Respondents: Mr Simic

ORDERS

SYG 2015 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant
AND:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Respondent

MR DEAN LESLEY RIELLY

Second Respondent

MR PAUL FITZPATRICK

Third Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

23 MAY 2022

THE COURT ORDERS THAT:

1.Pursuant to s 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCoA Act) or s 545 of the Fair Work Act 2009 (Cth) (FW Act), declaring that the second respondent (Mr Rielly) and the third…

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Details
Case
[2022] FedCFamC2G 388
Decision Date

CaseChat Overview and Summary

The Australian Building and Construction Commission (ABCC) brought proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) in the Federal Circuit and Family Court of Australia, contesting the union's alleged contravention of the Fair Work Act 2009. Specifically, the ABCC argued that two union officials, Mr Rielly and Mr Fitzpatrick, had obstructed or hindered the work of employees at a construction site. The CFMEU contested the allegations, arguing that their officials were exercising their lawful rights under the Act. The court had to determine whether the union officials had indeed obstructed or hindered the work of employees and, if so, whether the CFMEU was vicariously liable for their actions.

The legal issues before the court included whether the union officials' actions constituted a contravention of the Act and whether the CFMEU could be held accessorily liable for the actions of its officials. The court had to consider the evidence presented by the ABCC, including witness testimonies, and determine whether the union officials' actions met the criteria for obstruction or hindrance as defined by the Act. Furthermore, the court needed to assess if the CFMEU's vicarious liability could be established under the principles set out in previous case law.

The court found that the union officials' actions did constitute a contravention of the Act. It held that the officials' conduct, which included recruiting persons and holding discussions with workers without proper coordination with the site management, hindered the work of employees. The court noted that the actions were part of a continuum of events that collectively obstructed or hindered the work. The court also held that the CFMEU could be held accessorily liable for the actions of its officials, based on the principles established in previous cases. The court found that the officials' actions were sufficiently linked to the union's operations to attribute liability to the CFMEU.

The court ordered the CFMEU to pay a penalty of $60,000 for the contravention of the Fair Work Act 2009 by its officials. This decision underscored the importance of compliance with workplace regulations and the potential consequences for unions found to be in breach of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 302 IR 106, The Full Court found at [51]-[53]:With those principles in mind, we turn to the particular accessorial liability which arises in this appeal. It has three features. First, it involves accessorial liability by the CFMMEU, a corporate person, for the direct, or principal, contraventions of the FW Act by its officials, all of whom are natural persons. Secondly, all but one of those officials (the third to eighth appellants) were concurrently permit holders under the FW Act. As earlier explained, only a permit holder can contravene ss 497 and 500 of the FW Act. The second appellant, who did not have a permit, was found to have contravened s 494, a provision that can only be contravened by an official. Thirdly, therefore, the natural persons who committed the principal contraventions, and the natural persons whose conduct and state of mind was attributed to the CFMMEU under s 793, for the purposes of s 550, namely its officials, were one and the same persons. This combination of features is, in our view, sufficient to find the CFMMEU accessorily liable for the contraventions. As Charlesworth J explained in McDermott (at [121]):To the extent that it is necessary to show that CFMEU involved itself in some tangible way in the contraventions of its officials, there is no reason why s 793 should not facilitate proof of that requirement. Section 793 is premised on an accepted fiction that a body corporate is a separate legal entity from those who participate in it: Salomon v A Salomon & Company Ltd [1897] AC 22. Accepting that fiction, it does not matter that the deemed physical acts of the secondary participant are the same acts in fact engaged in by the primary contravener. CFMEU did not make any submission to the contrary. Accordingly, the physical acts of Mr McDermott and Mr Cartledge are, in each instance, taken also to be the acts of CFMEU. That is sufficient to demonstrate CFMEU’s participation in each contravention.THE AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER’S EVIDENCE Some 10 witnesses were called by the ABCC in support of their case. In most regards, their evidence was similar and/or corroborated other witnesses’ evidence. It is common ground between the parties that Mr Rielly and Mr Fitzpatrick were Officials of the CFMMEU and held valid work right entry permits at the time of the incident leading to the current litigation. It is not disputed that Mr Rielly and Mr Fitzpatrick sought to exercise those workplace entry rights of the Act. It is conceded that Mr Reilly sought to recruit persons and hold discussions with workers. Issues were also raised pursuant to s 494 of the Act in relation to occupational health and safety issues pursuant to the Work Health and Safety Act 2011 (NSW) as provided for by reg 3.25 of the Fair Work Regulations 2009 (Cth) (“the Regulations”).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In cross examination, it was put to Mr Jordan that he could not give evidence as to what happened at all times. Mr Jordan replied that he would have heard the trucks reversing. Mr Jordan conceded that he did not necessarily see them coming in. Mr Jordan was not sure if the truck was being tested when the Union Officials arrived. It was put to Mr Jordan that there was a need for a Spotter at any time the trucks were being reversed. Mr Jordan replied that it was when they are in the pour area. Mr Jordan disagreed that the position that the truck was in, was in the pour area. There was no requirement, in Mr Jordan’s view, under the safe work management system for a Spotter, until and unless the concrete truck came into the pour area.CONSIDERATION It is appropriate to deal with a number of general considerations first, before going on to consider the liability of Mr Rielly and Mr Fitzpatrick in detail. Unsurprisingly, there are aspects of the various witnesses’ evidence that vary in terms of detail and recall of times. Memories can and do differ even though witnesses may have been present at the same time. The Court has taken account of this and looked to establish facts based on what it considers to be the best evidence available. Further, the fact that some detail may be incorrect in a witness’s evidence is not, by itself, a reason to reject the whole of that witness’s evidence.THE PLEADINGS SUBMISSION Counsel for the first respondent submitted that the applicant had chosen to conduct the matter in a different manner than that which was pleaded. Reliance was placed on Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 at [50] where the following was said:[T]he respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel’s opening or closing submissions and then seek to justify that course by pointing to the respondents’ failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast. On behalf of the respondents it was submitted that the applicant, on the basis of the pleadings, needed to prove that Mr Fitzpatrick and Mr Rielly in exercising their rights of entry, hindered, or obstructed or otherwise acted in an improper manner. If the applicant was unable to prove any element then the entire case fails. That is, the case was cumulative. In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) [2021] FCA 920 at [126]-[128] the following was said:In closing submissions, however, Mr White confirmed that the allegation in para 73 was that it was the combination of the several events that constituted the contravention, referring to the subparagraphs as being a “continuum of acts”. That is consistent with the natural reading of para 73. The absence of a conjunction, such as “or” or “and/or”, between subparagraphs or of any introductory phrase in the chapeau to the paragraph to suggest otherwise, indicates that the subparagraphs were intended to be cumulative…It therefore follows, as the union officials submitted, that to succeed on the obstructing or hindering allegations the Commissioner had to prove each of the elements listed in subparas (a)–(e). Consequently, if any one of the subparagraphs is not proved, then the Commissioner’s case falls over.