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CFMEU v RGN Mining Services Pty Ltd

CFMEU v RGN Mining Services Pty Ltd

Case [2018] FCCA 162 5 February 2018

Statutory Construction

Jurisdiction

Procedural Fairness

Employment Law

Statutory Interpretation

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CFMEU & ORS v RGN MINING SERVICES PTY LTD & ANOR

[2018] FCCA 162

Catchwords:
INDUSTRIAL LAW – Penalty hearing – First Respondent in liquidation – Second Respondent bankrupt – whether bankruptcy a bar to imposition of civil penalties.

Legislation:

Bankruptcy Act 1966 (Cth), ss.58, 60, 82

Crimes Amendment (Penalty Unit) Act 2017 (Cth), sch.1
Fair Work Act 2009 (Cth), ss.45, 50, 323, 539, 546, 550

Cases cited:

Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364
Construction, Forestry, Mining and Energy Union & Ors v RGN Mining Services Pty Ltd & Anor [2017] FCCA 1546
Cotis v Macpherson (2007) 169 IR 30; [2007] FMCA 2060
Fair Work Ombudsman v EA Fuller & Sons Pty Ltd & Anor [2013] FCCA 5
Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor (No.3) [2012] FMCA 883
Fair Work Ombudsman v Garfield Berry Farm Pty Ltd & Anor (2011) 9 ABC(NS) 593; [2011] FMCA 885
Fair Work Ombudsman v Garfield Berry Farm Pty Ltd & Anor [2012] FMCA 103
Fair Work Ombudsman v Goldfinger Facility Management Pty Ltd & Anor (2016) 304 FLR 320; [2016] FCCA 356
Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216; [1992] FCA 553
Health Services Union v Jackson (No.3) [2015] FCA 694
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Mathers & Anor v Commonwealth of Australia (2004) 134 FCR 135; [2004] FCA 217
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357; [2008] FCAFC 170
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65
SBA Music Pty Ltd v Hall (No.2) [2014] FCA 1116

First Applicant:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Applicant:

BRADLEY PAUL BOYLING

Third Applicant:

JASON SYDNEY BRETT

First Respondent:

RGN MINING SERVICES PTY LTD

Second Respondent:

RONALD GODFREY NIELSEN

File Number:

SYG 1566 of 2016

Judgment of:

Judge Barnes

Hearing dates:

26 September 2017 and 6 November 2017

Delivered at:

Sydney

Delivered on:

5 February 2018

REPRESENTATION

Solicitor for the Applicants:

Mr Walkaden

Respondents:

No appearance

ORDERS

Pursuant to s.546(1) of the Fair Work Act 2009 (Cth) (the Act) the Second Respondent pay an aggregate penalty of $18,900 in respect of the contraventions of the Act referred to in the declarations made in this matter on 5 July 2017.
Pursuant to s.546(3) of the Act the Second Respondent pay the said penalty to the Construction, Forestry, Mining and Energy Union within 60 days of today’s date.
Any party have liberty to apply in relation to the implementation of these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1566 of 2016

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Applicant

BRADLEY PAUL BOYLING

Second Applicant

JASON SYDNEY BRETT

Third Applicant

And

RGN MINING SERVICES PTY LTD

First Respondent

RONALD GODFREY NIELSEN

Second Respondent

REASONS 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 RGN Mining Services Pty Ltd

Details

AGLC: CFMEU v RGN Mining Services Pty Ltd [2018] FCCA 162
Case: [2018] FCCA 162
Decision Date: 5 February 2018

CaseChat Overview and Summary

The Full Federal Court considered an appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) against a decision of the Federal Court of Australia. The dispute concerned alleged contraventions of the Fair Work Act 2009 (Cth) by RGN Mining Services Pty Ltd, specifically relating to the termination of employment of certain employees. The CFMEU sought to enforce a notice of intention to issue a notice to produce documents, which had been issued by the Fair Work Ombudsman (FWO) to RGN Mining Services.

The primary legal issue before the Full Court was whether the FWO had the power to issue a notice to produce documents to RGN Mining Services in circumstances where the FWO had not yet formed a belief that a contravention of the Fair Work Act had occurred. The Court was required to interpret the scope of the FWO's investigative powers under section 502 of the Fair Work Act, particularly the preconditions for issuing such a notice.

The Full Court held that the FWO's power to issue a notice to produce documents under section 502 of the Fair Work Act is not contingent on the FWO having formed a belief that a contravention has occurred. Instead, the power is exercisable for the purpose of obtaining information to assist the FWO in performing its functions, which includes investigating potential contraventions. The Court reasoned that a broad interpretation of the FWO's investigative powers is consistent with the objects of the Fair Work Act, which aim to ensure compliance with workplace laws.

The appeal was dismissed, and the Full Federal Court affirmed the FWO's authority to issue the notice to produce documents.

Orders