Australian Building and Construction Commissioner v Hanlon - [2020] FCCA 3409

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v HANLON & ORS

[2020] FCCA 3409

Catchwords:
INDUSTRIAL LAW – Right of entry under the Fair Work Act 2009 – procedural conditions on availability and exercise of right of entry – effect of failure to comply with conditions on availability and exercise of right of entry.

WORDS AND PHRASES – Fair Work Act 2009 – acting in an improper manner.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 481, 484, 486, 487, 489, 490, 500, 512, 518, 539, 546, 793
Crimes Act 1914, ss.4AA, 4F
Evidence Act 1995, s.140
Fair Work (Registered Organisations) Act 2009 (Cth), s.27
Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth), items 4, 19, 24 of sch.2

Australian Building and Construction Commissioner v CFMEU (Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473
Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147
Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293
Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2017) 251 FCR 528
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Director of theFair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973
Australian Building and Construction Commissioner v Harris [2017] FCA 733
Australian Building and Construction Commissioner v McDermott (No 2) (2017) 252 FCR 393
Pine v Seelite Windows & Doors Pty Ltd [2005] FCA 500

Applicant:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent:

REBEL HANLON

Second Respondent:

BRIAN PARKER

Third Respondent:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

File Number:

SYG 2231 of 2015

Judgment of:

Judge Cameron

Hearing date:

26-28 July 2016, 25 October 2016, 9 November 2017

Date of Last Submission:

2 August 2018

Delivered at:

Sydney

Delivered on:

16 December 2020

REPRESENTATION

Counsel for the Applicant:

Ms S. Talbert and later Mr M. Seck

Solicitors for the Applicant:

Bartier Perry

Counsel for the Respondents:

Mr J. H. Pearce

Solicitors for the Respondents:

Taylor & Scott

THE COURT DECLARES THAT

On 11 August 2014 the first respondent acted in an improper manner and so contravened s.500 of the Fair Work Act 2009 by entering a construction site at Riverbank Drive, The Ponds and, having sought to exercise rights under Part 3-4 of the Fair Work Act 2009, remained on the site although he had failed to give notice of entry and refused to produce his entry permit.
On 11 August 2014 the second respondent acted in an improper manner and so contravened s.500 of the Fair Work Act 2009 by entering a construction site at Riverbank Drive, The Ponds and, having sought to exercise rights under Part…

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: [2020] FCCA 3409
Decision Date: 16 December 2020

CaseChat Overview and Summary

The Australian Building and Construction Commissioner brought proceedings against Mr Hanlon and another respondent concerning alleged contraventions of section 500 of the *Fair Work Act 2009* (Cth). The dispute centred on the respondents' entry onto a construction site and their conduct while present there, which the Commissioner alleged constituted acting in an improper manner. The matter was heard by Cameron J in the Federal Court of Australia.

The primary legal issue before the court was whether the respondents had contravened section 500 of the *Fair Work Act 2009* by acting in an improper manner. This involved determining the effect of failing to comply with the procedural conditions attached to the right of entry under Part 3-4 of the Act, specifically regarding the provision of notice of entry and the production of an entry permit. The court also considered whether the respondents' interactions with workers on site, including aggressive or intimidatory responses to lawful requests and speaking to workers without authority, amounted to improper conduct.

Cameron J reasoned that the right of entry provisions in the *Fair Work Act 2009* are subject to strict procedural conditions. The failure to provide the required notice of entry and to produce an entry permit upon request meant that the respondents were not lawfully exercising their rights of entry. Consequently, their continued presence on the site and their subsequent conduct, including aggressive responses and speaking to workers without authorisation, were found to constitute acting in an improper manner, thereby contravening section 500 of the Act.

The court declared that both respondents had contravened section 500 of the *Fair Work Act 2009* by acting in an improper manner on the construction site. The matter was subsequently adjourned for further directions.

Orders

Orders of the court

THE COURT DECLARES THAT

1. On 11 August 2014 the first respondent acted in an improper manner and so contravened s.500 of the Fair Work Act 2009 by entering a construction site at Riverbank Drive, The Ponds and, having sought to exercise rights under Part 3-4 of the Fair Work Act 2009, remained on the site although he had failed to give notice of entry and refused to produce his entry permit.

2. On 11 August 2014 the second respondent acted in an improper manner and so contravened s.500 of the Fair Work Act 2009 by entering a construction site at Riverbank Drive, The Ponds and, having sought to exercise rights under Part 3-4 of the Fair Work Act 2009:

2. (a) remained on the site although he had failed to give notice of entry and refused to produce his entry permit;

2. (b) responded in an inappropriate, aggressive or intimidatory manner to lawful requests to see his entry notice and entry permit; and

2. (c) spoke to workers without authority to do so.

THE COURT ORDERS THAT

1. The matter stand over for directions to 5 February 2021 at 9:30am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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