Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case)

The Australian Building and Construction Commissioner filed a case against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Mr. Murphy, alleging breaches of Section 500 of the Fair Work Act 2009 (Cth). The dispute arose from conduct at the Geelong Grammar School construction site, where it was claimed that Mr. Murphy, as a permit holder, intentionally hindered or obstructed persons working on the site and otherwise acted improperly. The Court of Appeal was tasked with determining whether the Commissioner's allegations were substantiated and, if so, to what extent the CFMMEU was liable for the actions of Mr. Murphy.

The central legal issues before the court were whether Mr. Murphy's actions constituted a contravention of Section 500 of the Fair Work Act and whether the CFMMEU, as an entity, was liable for these actions. The court needed to consider the evidence presented regarding Mr. Murphy's conduct and the CFMMEU's potential liability, particularly in light of the agreement between the parties to limit the issues in dispute and their handling of the CFMMEU’s liability in their post-hearing submissions.

The court found that Mr. Murphy's actions on the Geelong Grammar School construction site constituted a contravention of Section 500 of the Fair Work Act. The court was satisfied that Mr. Murphy had intentionally hindered or obstructed workers and acted improperly. However, the court could not conclusively determine the CFMMEU’s liability due to the parties' handling of the issue in their supplementary submissions. The court concluded that further clarification and argument were needed to address the CFMMEU’s liability under Section 793 of the Fair Work Act.

The court issued orders declaring that Mr. Murphy had contravened Section 500 of the Fair Work Act. It directed the parties to inform the court of their position on the CFMMEU’s liability and whether further findings or a hearing was required. The court also directed the parties to agree on the form of declaration regarding Mr. Murphy's contraventions and to address any further relief sought by the Commissioner, such as penalties. No order for costs was made as the Commissioner did not seek costs.