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Australian Building and Construction Commissioner v Powell

Australian Building and Construction Commissioner v Powell

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FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Powell [2017] FCAFC 89

Appeal from: Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287

File number: VID 1361 of 2016

Judges: ALLSOP CJ, WHITE AND O'CALLAGHAN JJ

Date of judgment: 2 June 2017

Catchwords: INDUSTRIAL LAW – right of entry – entry by official of organisation to workplace after request to assist by health and safety representative under s 58(1)(f) of the Occupational Health and Safety Act 2004 (Vic) – obligation on employer to allow assistant entry under s 70 of the Occupational Health and Safety Act 2004 (Vic) – whether assistant exercised “State or Territory OHS right” within meaning of s 494 of the Fair Work Act 2009 (Cth)

Legislation:
Fair Work Act 2009 (Cth) Pt 3-4, ss 6, 478, 480, 481, 483A, 484, 486, 487, 489, 490, 491, 494, 495, 496, 497, 498, 499, 512, 513, 514

Workplace Relations Act 1996 (Cth) (repealed) Pt 15

Fair Work Regulations 2009 (Cth) reg 3.25

Industrial Relations Act 1979 (WA) Pt II Div 2G, ss 49H, 49I

Interpretation of Legislation Act 1984 (Vic) s 36

Occupational Health and Safety Act 1985 (Vic) (repealed) Pt IV, ss 30, 31, 32

Occupational Health and Safety Act 1989 (ACT) (repealed) Pt 5 Div 5.4, s 77

Occupational Health and Safety Act 2000 (NSW) (repealed) Pt 5 Div 3, s 77

Occupational Health and Safety Act 2004 (Vic), Pt 7, Pt 8, ss 54, 55, 56, 57, 58, 70, 87

Workplace Health and Safety Act 1995 (Qld) (repealed) ss 90I, 90J

Workplace Health and Safety Act 2007 (NT) (repealed) Pt 4 Div 7, s 53

Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005 (Cth)

Cases cited:
Commonwealth Custodial Services Ltd v Valuer General [2007] NSWCA 365; 156 LGERA 186

CSL Australia Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261; 297 ALR 289

Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287

Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31

Valuer General v Fivex Pty Ltd [2015] NSWCA 53; 206 LGERA 450

Date of hearing: 23 May 2017

Registry: Victoria

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 61

Counsel for the Appellant: Mr M Wheelahan QC with Mr R O’Neill

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Ms R Doyle SC with Ms J Watson

Solicitor for the Respondent: Slater & Gordon Lawyers

Counsel for the Intervener: Mr R Niall QC SG with Mr A Palmer

Solicitor for the Intervener: Victorian Government Solicitor’s Office

ORDERS

VID 1361 of 2016

BETWEEN:
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Appellant

AND:
MICHAEL POWELL

Respondent

JUDGES:

ALLSOP CJ, WHITE AND O'CALLAGHAN JJ

DATE OF ORDER:

2 JUNE 2017

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The order of the Court made on 3 November 2016 dismissing the proceedings be set aside.
3.The proceeding…

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: [2017] FCAFC 89
Decision Date: 2 June 2017

CaseChat Overview and Summary

In the case of Australian Building and Construction Commissioner v Powell, the dispute centred around the right of an occupational health and safety (OHS) representative to enter a workplace. The Commissioner had sought an injunction to prevent Powell, the employer, from obstructing the OHS representative's access to the workplace. Powell argued that the representative's request to enter the workplace was not legitimate as it did not pertain to a "State or Territory OHS right" as defined in the Fair Work Act 2009. The matter was heard and determined in the Federal Court of Australia.

The central legal issue before the court was whether the OHS representative's right to enter the workplace was protected under the Fair Work Act 2009. Specifically, the court needed to determine if the representative's action constituted an exercise of a "State or Territory OHS right" within the meaning of section 494 of the Act. This required an interpretation of the interplay between state occupational health and safety legislation and federal industrial relations law.

The court held that the OHS representative's right to enter the workplace was indeed protected under the Fair Work Act. The court found that the representative's request to enter the workplace was made in good faith and was related to the exercise of a "State or Territory OHS right". This conclusion was based on the provisions of the Occupational Health and Safety Act 2004 (Vic), which impose an obligation on employers to allow such entry. Consequently, the appeal was allowed, the previous order dismissing the proceedings was set aside, and the matter was remitted to the primary judge for further hearing in accordance with the court's reasoning.

Orders

Orders of the court

1. The appeal be allowed.

2. The order of the Court made on 3 November 2016 dismissing the proceedings be set aside.

3. The proceeding be remitted to the primary judge for further hearing in accordance with these reasons.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287
File number:	VID 1361 of 2016
Judges:	ALLSOP CJ, WHITE AND O'CALLAGHAN JJ
Date of judgment:	2 June 2017
Catchwords:	INDUSTRIAL LAW – right of entry – entry by official of organisation to workplace after request to assist by health and safety representative under s 58(1)(f) of the Occupational Health and Safety Act 2004 (Vic) – obligation on employer to allow assistant entry under s 70 of the Occupational Health and Safety Act 2004 (Vic) – whether assistant exercised “State or Territory OHS right” within meaning of s 494 of the Fair Work Act 2009 (Cth)
Legislation:	Fair Work Act 2009 (Cth) Pt 3-4, ss 6, 478, 480, 481, 483A, 484, 486, 487, 489, 490, 491, 494, 495, 496, 497, 498, 499, 512, 513, 514 Workplace Relations Act 1996 (Cth) (repealed) Pt 15 Fair Work Regulations 2009 (Cth) reg 3.25 Industrial Relations Act 1979 (WA) Pt II Div 2G, ss 49H, 49I Interpretation of Legislation Act 1984 (Vic) s 36 Occupational Health and Safety Act 1985 (Vic) (repealed) Pt IV, ss 30, 31, 32 Occupational Health and Safety Act 1989 (ACT) (repealed) Pt 5 Div 5.4, s 77 Occupational Health and Safety Act 2000 (NSW) (repealed) Pt 5 Div 3, s 77 Occupational Health and Safety Act 2004 (Vic), Pt 7, Pt 8, ss 54, 55, 56, 57, 58, 70, 87 Workplace Health and Safety Act 1995 (Qld) (repealed) ss 90I, 90J Workplace Health and Safety Act 2007 (NT) (repealed) Pt 4 Div 7, s 53
Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005 (Cth)
Cases cited:	Commonwealth Custodial Services Ltd v Valuer General [2007] NSWCA 365; 156 LGERA 186 CSL Australia Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261; 297 ALR 289 Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Valuer General v Fivex Pty Ltd [2015] NSWCA 53; 206 LGERA 450
Date of hearing:	23 May 2017
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	61
Counsel for the Appellant:	Mr M Wheelahan QC with Mr R O’Neill
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Ms R Doyle SC with Ms J Watson
Solicitor for the Respondent:	Slater & Gordon Lawyers
Counsel for the Intervener:	Mr R Niall QC SG with Mr A Palmer
Solicitor for the Intervener:	Victorian Government Solicitor’s Office

JUDGES:	ALLSOP CJ, WHITE AND O'CALLAGHAN JJ
DATE OF ORDER:	2 JUNE 2017