Construction Forestry Mining and Energy Union v Alfred

FEDERAL COURT OF AUSTRALIA

Construction Forestry Mining and Energy Union v Alfred [2016] FCA 591

File number:

QUD 220 of 2016

Judge:

LOGAN J

Date of judgment:

6 May 2016

Catchwords:

INDUSTRIAL LAW – power of Fair Work Building Inspector to obtain information and documents – notice to produce issued pursuant to s 712 – whether notice to produce was invalid and of no effect – whether notice to produce referred to building matter – notice to produce wholly deficient in detail – notice invalid and of no effect – Fair Work (Building Industry) Act 2012 (Cth) ss 4, 5, 59, 59C – Fair Work Act (Cth) ss 706, 712

Legislation:

Fair Work Act 2009 ss 346, 349, 703, 706(1), 706(1)(a), 709, 712, 713

Fair Work (Building Industry) Act 2012 (Cth) ss 4, 5, 59(1), 59C, 59C(1), 59C(2)(a), 59C(3)

Judiciary Act 1903 (Cth) s 39B

Trade Practices Act 1974 (Cth) ss 155, 155(1)

Workplace Relations Act1996 (Cth) s 86(1A)(c)

Cases cited:

Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581

Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman (No 2) (1979) 40 FLR 428

Thorson v Pine [2004] FCA 805

Thorson v Pine [2004] FCA 1316

Date of hearing:

6 May 2016

Registry:

Queensland

Division:

General Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

26

Counsel for the Applicant:

Mr C A Massy

Solicitor for the Applicant:

Hall Payne Lawyers

Counsel for the Respondent:

Mr C Murdoch

Solicitor for the Respondent:

Clayton Utz Lawyers

ORDERS

QUD 220 of 2016

BETWEEN:

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Applicant

AND:

GREGORY ALFRED

Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	6 MAY 2016

THE COURT ORDERS THAT:

1.The Notice to Produce Records or Documents purportedly issued pursuant to s 712 of the Fair Work Act 2009 (Cth) to the applicant on 11 March 2016 is invalid and of no effect.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

LOGAN J:

1. On 11 March 2016, Mr Gregory Alfred, a Fair Work Building Industry Inspector, appointed under the Fair Work (Building Industry) Act 2012 (Cth) (FWBI Act) signed a notice addressed to the proper officer of the Construction, Forestry, Mining and Energy Union (CFMEU) requiring it to produce, pursuant to s 712 of the Fair Work Act 2009 (Cth) (FWA), documents set out in that notice. That notice was subsequently served on the CFMEU. The notice required compliance by production by 4.00pm on Friday, 1 April 2016. By agreement between the CFMEU and Mr Alfred, the time for compliance has been extended pending the hearing and determination of a challenge which the CFMEU has made to the validity of the notice. That challenge takes the form of an application under s 39B of the Judiciary Act 1903 (Cth) for a declaration that the notice is void and of no effect.

2. Within the FWBI Act, s 59(1) provides:

   (1)The…