Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case)

The appeal before the Court was brought by the Australian Building and Construction Commissioner, acting as the Director of Public Prosecutions in industrial matters, against a judgment of the Federal Court. The Commissioner sought to overturn findings made by the trial judge that a permit holder, Mr Alex Tadic, did not act in an improper manner when exercising his rights under the Fair Work Act 2009 (Cth). The appeal centred on whether the trial judge erred in law by not finding that Mr Tadic's conduct during a site inspection constituted an improper manner as defined by section 500 of the Act.

The central legal issue the Court had to address was whether the trial judge correctly assessed the propriety of Mr Tadic's conduct during the site inspection. The Court had to determine if Mr Tadic's forceful and sometimes profane manner of expressing dissatisfaction with the WorkSafe Victoria inspector's conduct fell below the standard of behaviour reasonably expected of someone in his position. The Court examined the trial judge's findings against the objective standard for impropriety as outlined in relevant case law, which emphasised that impropriety is assessed based on the conduct itself, not the intent behind it.

The Court found that the trial judge had indeed erred in law by not finding that Mr Tadic's conduct was improper. The Court noted that Mr Tadic's language and tone during the inspection, despite not amounting to yelling or screaming, still constituted forceful and direct expressions of dissatisfaction that were objectively improper. The Court held that the use of swear words as sentence enhancers and the raised voice in making these comments fell below the standard of propriety expected of someone in Mr Tadic's position. Consequently, the appeal was allowed, the orders made by the trial judge were set aside, and the case was remitted for a determination of the appropriate penalty for Mr Tadic's contravention of the Act, as well as whether the Construction, Forestry, Mining and Energy Union had also contravened the Act.