Australian Building and Construction Commissioner v Collier - [2019] FCCA 650

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v COLLIER & ORS

[2019] FCCA 650

Catchwords:

INDUSTRIAL LAW – Application made pursuant to ss.499, 500 and 503(1) of the Fair Work Act 2009 (Cth) – whether the first respondent failed to comply with occupational health and safety requirements (“OHS”) – whether the first respondent hindered or obstructed workers from undertaking their work – whether the first respondent’s conduct involved actions which were exercised in an improper manner – whether the first respondent made deliberate or reckless misrepresentations that he was authorised to give directions to workers to stop work – Declaration made that first respondent contravened s.499 of the Fair Work Act 2009 (Cth) – applications seeking that the first respondent contravened ss.500, 503 of the Fair Work Act 2009 (Cth) dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 499, 500, 503, 551

Fair Work (Building Industry) Act 2012 (Cth), ss.4, 5

Evidence Act 1995 (Cth), s.140

Work Health and Safety Act 2011 (NSW), s.19

Cases cited:

Australian Building and Construction Commission v Collier & Ors [2017] FCCA 1964
Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64; (2016) 242 FCR 46
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; (1938) 12 ALJ 100; (1938) 12 ALJR 100; (1938) ALR 334
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 277 IR 75
Darlaston v Parker [2010] FCA 771; (2010) 189 FCR 1; (2010) 62 AILR 101-228; (2010) 196 IR 307
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199
Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668; (2015) 147 ALD 373

Applicant:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent:

LUKE COLLIER

Second Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Third Respondent:

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

File Number:

SYG 3426 of 2014

Judgment of:

Judge Nicholls

Hearing date:

7 June 2018

Date of Last Submission:

7 June 2018

Delivered at:

Sydney

Delivered on:

18 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr A. Britt

Solicitors for the Applicant:

Bartier Perry

Counsel for the First Respondent:

Mr I. Latham

Solicitors for the First Respondent:

James Gervase Liddy

Solicitors for the Second Respondent:

Ivan Anthony Simic

Solicitors for the Third Respondent:

Taylor & Scott Lawyers

THE COURT DECLARES:

On 5 March 2014 the first respondent contravened s.499 of the Fair Work Act 2009 (Cth).

THE COURT ORDERS:

The application be otherwise dismissed in relation to the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3426 of 2014

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

And

LUKE COLLIER

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent

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

Third Respondent

REASONS FOR JUDGMENT

This is an application made by the Director of the Fair Work Building Industry Inspectorate, now the Australian Building and Construction Commission (“ABCC”) pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 650
Decision Date: 18 March 2019

CaseChat Overview and Summary

The Australian Building and Construction Commissioner (ABCC) brought proceedings against Mr Collier in the Federal Court of Australia. The Commissioner alleged that Mr Collier had contravened various provisions of the *Fair Work Act 2009* (Cth), specifically sections 499, 500, and 503(1). The core of the dispute concerned Mr Collier's alleged failure to comply with occupational health and safety (OHS) requirements, his obstruction of workers from undertaking their work, and whether his conduct involved improper exercise of power or deliberate or reckless misrepresentations regarding his authority to direct workers to stop work.

The Federal Court was required to determine whether Mr Collier had contravened section 499 of the *Fair Work Act 2009* by failing to comply with OHS requirements. Additionally, the court had to consider whether his actions constituted hindering or obstructing workers from undertaking their work, thereby contravening section 500, and whether his conduct involved an improper exercise of power or misrepresentations about his authority to issue stop-work directions, as contemplated by section 503(1).

Nicholls J found that Mr Collier had contravened section 499 of the *Fair Work Act 2009* by failing to comply with OHS requirements. However, the applications seeking declarations that Mr Collier had contravened sections 500 and 503 of the Act were dismissed. The court's reasoning, though not detailed in the provided text, led to these specific findings regarding the contraventions alleged.

Orders