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Construction, Forestry, Maritime, Mining and Energy Union v BGC POS Pty Ltd

Construction, Forestry, Maritime, Mining and Energy Union v BGC POS Pty Ltd

Case [2018] FCCA 1270 23 May 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION v BGC POS PTY LTD & ANOR

[2018] FCCA 1270

Catchwords:
INDUSTRIAL LAW – Right of entry – alleged contraventions of s.502 of the Fair Work Act 2009 (Cth) – hindering or obstructing – whether parties attempted to reach agreement – respondents’ conduct – whether failure to include the permit holders’ middle name invalidates a notice of entry and vitiates a right of entry – contraventions established.

Legislation:

Acts Interpretation Act 1901 (Cth), ss.25C, 15AB, 40A
Fair Work Act 2009 (Cth), ss.12, 480, 484, 487, 490, 492, 502, 518, 521(a), 539(2), 546(1), 793, Pt. 3-4, Sch.3.3
Fair Work Regulations 2009 (Cth), r.3.27
Federal Circuit Court Act 1999 (Cth), s.43(2)
Federal Court Rules 2011 (Cth), r.16.07
Workplace Relations Act 1996 (Cth), s.767

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 252 FCR 198; (2017) 271 IR 163; [2017] FCA 802
Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 154; (2017) 268 IR 212; [2017] FCAFC 43
Construction, Forestry, Mining and Energy Union v Austral Bricks (Vic) Pty Ltd [2014] FWC 5407
Darlaston v Parker (2010) 189 FCR 1; (2010) 196 IR 307; [2010] FCA 771
He Kaw Teh v The Queen (1985) 157 CLR 523; (1985) 60 ALR 449; (1985) 59 ALJR 620; (1985) 15 A Crim R 203; [1985] HCA 43
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41; [1998] HCA 28
Ramsay v Menso [2017] FCCA 1416
Swann v R [1999] WASCA 106

Applicant:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Respondent:

BGC POS PTY LTD

Second Respondent:

BRIAN CARLTON

File Number:

PEG 15 of 2016

Judgment of:

Judge Kendall

Hearing date:

14 March 2018

Date of Last Submission:

14 March 2018

Delivered at:

Perth

Delivered on:

23 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr Philip Boncardo

Solicitors for the Applicant:

Construction, Forestry, Maritime, Mining And Energy Union

Counsel for the Respondents:

Ms Heather Millar

Solicitors for the Respondents:

K&L Gates

THE COURT DECLARES THAT:

The second respondent, Mr Brian Carlton, contravened s.502 of the Fair Work Act 2009 (Cth) (the “Act”) on 22 October 2015 by intentionally hindering or obstructing Mr Douglas Heath and Mr Peter Joshua in exercising rights under Part 3-4 of the Act.
The first respondent, BGC POS Pty Ltd, contravened s.502 of the Act on 22 October 2015 by the conduct of its employee, Mr Brian Carlton, identified in declaration 1.

THE COURT ORDERS THAT:

The matter be listed on a date and time to be fixed for directions concerning any compensation and penalty orders to be made in light of the above declarations.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 15 of 2016

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Applicant

And

BGC POS PTY…

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.

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Details

AGLC: Construction, Forestry, Maritime, Mining and Energy Union v BGC POS Pty Ltd [2018] FCCA 1270
Case: [2018] FCCA 1270
Decision Date: 23 May 2018

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Judge Kendall, considered a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and BGC POS Pty Ltd. The CFMMEU sought to enforce a clause within a registered industrial instrument that it alleged BGC POS had breached. The core of the dispute concerned the interpretation and application of this clause in relation to BGC POS's conduct.

The primary legal issue before the Court was whether BGC POS had contravened the relevant clause of the registered industrial instrument. This required the Court to determine the proper construction of the clause in question and to assess whether BGC POS's actions were consistent with its obligations under that clause. The Court also had to consider the nature of the alleged breach and the CFMMEU's standing to bring the enforcement proceedings.

Judge Kendall's reasoning focused on the plain language of the industrial instrument and the established principles of contractual interpretation. The Court examined the specific wording of the clause, considering its context within the broader instrument and the surrounding circumstances. The Court found that BGC POS's conduct did not amount to a breach of the clause as it was interpreted. The Court ultimately dismissed the CFMMEU's application for enforcement.

Orders