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CFMEU v Merhis Constructions Pty Ltd

CFMEU v Merhis Constructions Pty Ltd

Case [2010] FMCA 751 29 October 2010

Union Rights of Entry

Unconscionable Conduct

Compensatory Damages

Limitation Periods

Industrial Law

Employment & Labour Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

CFMEU v MERHIS CONSTRUCTIONS PTY LTD

[2010] FMCA 751

INDUSTRIAL LAW – Union rights of entry – entry to premises under NSW occupational health and safety legislation – prior notice and demonstrated justification are not required – construction manager refusing entry to authorised union officials – union application for imposition of penalty on company under Commonwealth legislation – agreed facts and penalty – penalty of $12,000 was within permissible range.

Fair Work Act 2009 (Cth)
Industrial Relations Act 1996 (NSW)
Occupational Health and Safety Act 1989 (ACT)
Occupational Health and Safety Act 1983 (NSW), ss.24, 31
Occupational Health and Safety Act 2000 (NSW), ss.77, 78, 79, 81
WorkCover Legislation Amendment Act 1995 (NSW)
Workplace Relations Act 1996 (Cth), ss.756, 758, 759, 767, 769, 824, 826, 841
Workplace Relations Amendment (Work Choices) Act2005 (Cth)
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)

Australian Federation of Air Pilots v Australian Airlines Ltd (1991) 28 FCR 360
BGC Contracting Pty Ltd v Construction Forestry Mining and Energy Union of Workers (2004) 140 FCR 53
Dalzell v Ferguson (2009) 185 IR 392
Dimella Constructions Pty Ltd v Stocker and Stocker (1976) 14 SASR 215
Hogan v Riley [2010] FCAFC 30
Hogan v Riley (No.2) [2010] FMCA 760
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) (2009) 178 FCR 461
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Tran v The Commonwealth [2009] FCA 474
Being There: Changing Union Rights of Entry under Federal Industrial Law’ (2000) 13 AJLL 1

Applicant:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Respondent:

MERHIS CONSTRUCTIONS PTY LTD

File Number:

SYG 697 of 2010

Judgment of:

Smith FM

Hearing date:

15 September 2010

Delivered at:

Sydney

Delivered on:

29 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr I Latham

Solicitors for the Applicant:

CFMEU

Counsel for the Respondent:

Mr P Dunn (QC)

Solicitors for the Respondent:

Nasser Lawyers

THE COURT DECLARES THAT:

The respondent, Merhis Constructions Pty Ltd, contravened s.767(3)(b) of the Workplace Relations Act 1996 (Cth), in that it refused entry to premises by permit holders who were entitled to enter the said premises on 5 June 2009.

THE COURT ORDERS THAT:

The respondent, Merhis Constructions Pty Ltd, pay a penalty of $12,000 in respect of its involvement in that contravention pursuant to s.769(1) of the Workplace Relations Act 1996 (Cth).
Pursuant to s.841(1) of the Workplace Relations Act 1996 (Cth), the penalty shall be paid to the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 697 of 2010

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

And

MERHIS CONSTRUCTIONS PTY LTD

Respondent

REASONS FOR JUDGMENT

The CFMEU commenced these proceedings on 31 March 2010, seeking the imposition of pecuniary penalties on Merhis Constructions Pty Ltd (“Merhis Constructions”) for contraventions of s.767(3)(b) and (7)(b) of the Workplace Relations Act 1996 (Cth). It alleged that Merhis Constructions was responsible for actions of its construction manager, Khalil Merhi, on 3 March 2009 and…

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 Merhis Constructions Pty Ltd

Details

AGLC: CFMEU v Merhis Constructions Pty Ltd [2010] FMCA 751
Case: [2010] FMCA 751
Decision Date

CaseChat Overview and Summary

In these proceedings, the Construction, Forestry, Mining and Energy Union (CFMEU) sought a penalty against Merhis Constructions Pty Ltd for contravening provisions of the Workplace Relations Act 1996 (Cth). The CFMEU alleged that Merhis Constructions, through its construction manager, Khalil Merhi, refused entry to premises, obstructed, and delayed authorised officers of the CFMEU, who were exercising their rights of investigation of suspected breaches of NSW occupational health and safety legislation. The matter proceeded on the basis of agreed facts, which resulted in Merhis Constructions admitting liability for a contravention of s.767(3)(b) of the Workplace Relations Act 1996 (Cth), and agreeing to a penalty of $12,000. The Court imposed the penalty, and ordered Merhis Constructions to pay the penalty to the CFMEU. The CFMEU was not entitled to an award of costs.The Court considered the scheme of the legislation, the circumstances of the admitted contravention, and the principles of penalty and deterrence. It found that the agreed penalty was within the permissible range, and appropriate in the circumstances of the case.

Orders