Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case)

The appeal in the case of Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner, concerning the Bruce Highway Caloundra to Sunshine Upgrade, was heard in the Federal Court of Australia. The main parties involved were the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Australian Building and Construction Commissioner. The dispute revolved around allegations that CFMMEU officials had entered a construction site without the required permits, in contravention of federal workplace laws. Specifically, the Commissioner argued that the CFMMEU and its officials breached sections of the Fair Work Act 2009 by entering the site under Queensland legislation without the necessary federal permits.

The legal issues at the core of this case were twofold. Firstly, whether the exercise of the "State or Territory OHS right" by union officials under section 81(3) of the Work Health and Safety Act 2011 (Qld) qualified as a "right to enter premises" for the purposes of section 494 of the Fair Work Act 2009 (Cth). Secondly, whether the union could be held accessorially liable for the contraventions committed by its officials under sections 494(1), 497, and 500 of the Fair Work Act 2009, by virtue of section 793 of the Fair Work Act 2009, which imputes the conduct and state of mind of officials to the union.

The Court found that the reasoning in Australian Building and Construction Commissioner v Powell was applicable, determining that the state legislation conferring rights of entry did not equate to a "right to enter premises" under the Fair Work Act. Consequently, the union officials' entry without federal permits constituted a contravention of section 494(1). Regarding accessorial liability, the Court held that the union could indeed be held liable for the actions of its officials under section 550 of the Fair Work Act, as the union was "knowingly concerned" in the contraventions.

The appeal was dismissed, and the Court confirmed the findings of the Commissioner, upholding the penalties imposed on the CFMMEU and its officials for their actions. The Court's decision was based on the clear contravention of federal workplace laws and the applicability of accessorial liability provisions within the Fair Work Act.