CEPU (Western Australia Division) v Fortescue Metals Group Ltd

The Communications, Electrical and Plumbing Union (Western Australia Division) (CEPU) sought to exercise its right of entry to a workplace operated by Fortescue Metals Group Ltd (FMG). FMG alleged that the union official was unduly delayed in exercising this right, and consequently, FMG sought to have the CEPU's claim summarily dismissed on the grounds that it had no reasonable prospect of success. The matter came before Judge Antoni Lucev in the Federal Court of Australia.

The central legal issue before the Court was whether the CEPU's claim for alleged contraventions of the Fair Work Act 2009 (Cth) by FMG, in relation to the right of entry of a union official, had no reasonable prospect of success, thereby justifying summary dismissal. This required the Court to consider the circumstances surrounding the union official's attempt to enter the FMG workplace and whether FMG's actions constituted an undue delay or obstruction.

Judge Lucev considered the provisions of the Fair Work Act 2009 (Cth) governing the right of entry for union officials and the criteria for summary dismissal. The Court found that there were arguable questions of fact and law to be determined regarding whether FMG had unduly delayed the union official. Specifically, the Court noted that the evidence did not conclusively establish that the delay was reasonable or that the CEPU's claim was bound to fail. Consequently, the Court determined that summary dismissal was not appropriate in these circumstances.