Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case)

In the Federal Court of Australia, the case of Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) involved allegations of contraventions of section 500 of the Fair Work Act 2009 (Cth) by an official of the Construction, Forestry, Mining and Energy Union at the Parliament Square construction site in Hobart, Tasmania. The Commissioner of the Australian Building and Construction Commission brought the action against the union, asserting that its official had engaged in improper conduct during several site visits in 2015, including not complying with notice requirements, not producing a notice of entry upon request, not holding discussions during meal times or other breaks, not entering only on a day specified in an entry notice, refusing to leave the site when requested, and using foul language. The Commissioner also sought to hold the union vicariously liable for the official's actions under sections 550(2)(c) and 793 of the Act.

The primary legal issues for the court to determine were whether the union official was exercising or seeking to exercise rights in accordance with Part 3-4 of the Act, and whether the official had acted in an improper manner by not complying with various notice and conduct requirements. The court had to assess the evidence provided by the Commissioner's witnesses, which included a construction manager, a site safety officer, a senior site manager, a site foreman, and a director of the construction company, alongside the evidence of the union official, who was the sole respondent witness. The court found the union official's evidence to be unsatisfactory due to inconsistencies and attempts to alter his testimony in light of contradictory facts. The court preferred the evidence of the Commissioner’s witnesses and concluded that the union official had contravened section 500 of the Act. The court further determined that the union could be held liable for the official’s actions under the accessorial liability provisions of the Act.

The court ordered a further hearing of the application to be listed at 11.00 am on 13 August 2018. It directed that by 31 July 2018, the Commissioner must file and serve any affidavits and an outline of his written submissions relating to penalties and any other relief sought. The respondents were required to file and serve any affidavits and an outline of their written submissions in response to those of the applicant by 9 August 2018.