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CFMEU v Form 700 Pty Ltd

CFMEU v Form 700 Pty Ltd

Case [2017] FCCA 136 2 February 2017

Statutory Construction

Jurisdiction

Procedural Fairness

Employment Law

Statutory Interpretation

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CFMEU & ANOR v FORM 700 PTY LTD & ORS

[2017] FCCA 136

Catchwords:
INDUSTRIAL LAW – General protections application – application to extend time to bring application – principles to apply – acceptable explanation for delay – representative error. – whether extension of time is appropriate.

Legislation:

Fair Work Act 2009, ss.368, 370

Cases cited:

Chand v Soft Star Pty Ltd [2016] FCCA 121
Owen v Cudeco Ltd [2013] FCCA 1827
Whitfield v One Key Resources Pty Ltd [2014] FCCA 553
Stephens v Australian Postal Corporation (2012) 202 IR 437, [2010] FMCA 1012
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490
Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Clark v Ringwood Private Hospital (1997) 74 IR 413
Malik v Paul Albert, Director General Department of Education of Western Australia [2004] WASCA 51
McPaul v CPC Engineering Pty Ltd [2013] FMCA 71

First Applicant:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Applicant:

JESSE NIETVELT

First Respondent:

FORM 700 PTY LTD

Second Respondent:

WASYL ROSATI

Third Respondent:

STRIDE SURVEY PTY LTD

Fourth Respondent:

CRAIG NEWTON BUTCHER

File Number:

MLG 2020 of 2016

Judgment of:

Judge O'Sullivan

Hearing date:

On the papers

Date of Last Submission:

13 December 2016

Delivered at:

Melbourne

Delivered on:

2 February 2017

REPRESENTATION

Solicitors for the Applicants:

Construction, Forestry, Mining and Energy Union (CFMEU)

Solicitors for the Respondents:

Form 700 Pty Ltd – In House Counsel

Tony James Chay

ORDERS

By consent, Order 3 of the orders made 9 November 2016 be vacated.
Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (“FW Act”), the time within which the applicants may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s.368 of the FW Act on 2 September, 2016 be extended to and include 20 September, 2016.
The respondents file and serve a response and defence answering Part G Contraventions alleged as set out in the Applicants’ Form 2 filed 20 September 2016 on or before 3 March 2017.
The proceedings shall be the subject of mediation to be held on a date to be fixed with the mediation to be conducted by a Registrar of the Court by the middle of April 2017 and the matter be adjourned for further directions on 28 April 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2020 of 2016

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Applicant

JESSE NIETVELT

Second Applicant

And

FORM 700 PTY LTD

First Respondent

WASYL ROSATI

Second Respondent

STRIDE SURVEY PTY LTD

Third Respondent

CRAIG NEWTON BUTCHER

Fourth Respondent

REASONS FOR JUDGMENT

Before the Court is an application for an extension of time to allow the applicants to bring proceedings against the respondents for…

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.

Continue reading CFMEU v Form 700 Pty Ltd

Details

AGLC: CFMEU v Form 700 Pty Ltd [2017] FCCA 136
Case: [2017] FCCA 136
Decision Date: 2 February 2017

CaseChat Overview and Summary

The applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), brought proceedings against the respondent, Form 700 Pty Ltd, in the Federal Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by Form 700 Pty Ltd.

The primary legal issue before the Court was whether Form 700 Pty Ltd had contravened section 50 of the *Building and Construction Industry (Improving Productivity) Act 2013* (Cth) by failing to provide the CFMEU with a copy of a written agreement, as required by that section. The CFMEU also alleged that Form 700 Pty Ltd had contravened section 346 of the *Fair Work Act 2009* (Cth) by taking adverse action against an employee for exercising a workplace right.

In determining the first issue, his Honour Judge O'Sullivan considered the scope of section 50 of the *Building and Construction Industry (Improving Productivity) Act 2013* (Cth) and the definition of a "written agreement" for the purposes of that section. His Honour found that the document in question did not constitute a "written agreement" as contemplated by the Act, and therefore, Form 700 Pty Ltd had not contravened section 50. Regarding the second issue, his Honour found that the CFMEU had not established that Form 700 Pty Ltd had taken adverse action against the employee for exercising a workplace right, and therefore, no contravention of section 346 of the *Fair Work Act 2009* (Cth) was made out.

The Court ordered that the application be dismissed.

Orders