Construction, Forestry, Mining and Energy Union v Class 1 Form Pty Ltd - [2017] FCCA 696

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v CLASS 1 FORM PTY LTD & ANOR

[2017] FCCA 696

Catchwords:
INDUSTRIAL LAW – Application for the imposition of a pecuniary penalty.

Legislation:

Evidence Act1995 (Cth), s.140(2)

Fair Work Act 2009, ss.360, 361, 502, 539(2)

Work, Health and Safety Act 2011 (ACT), ss.117, 118(1)(b)

Cases cited:
Australian Building and Construction Commissioner v Hall [2017] FCA 274
Briginshaw v Briginshaw (1938) 60 CLR 336
Manley v Tucs (1984) 58 ALR 217

Applicant:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent:

CLASS 1 FORM PTY LTD

Second Respondent:

TONY JOSEPH TALEB

Third Respondent:

PETER ZARDO

Fourth Respondent:

ELIAS TALEB

File Number:

CAG 21 of 2015

Judgment of:

Judge Jarrett

Hearing date:

29 March 2017

Date of Last Submission:

29 March 2017

Delivered at:

Brisbane

Delivered on:

7 April 2017

REPRESENTATION

Counsel for the Applicant:

Mr Reitano

Solicitors for the Applicant:

Slater & Gordon

No appearance for the Third Respondent

ORDERS

Pursuant to s.539(2) of the Fair Work Act 2009 (Cth) and in respect of the third respondent’s contravention of s.502(1) of the Fair Work Act 2009 (Cth) committed on 19 January, 2015 the third respondent pay to the applicant a penalty fixed in the sum of $1,000.
The penalty to be paid by the third respondent to the applicant be paid within 30 days of the date of these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Canberra

CAG 21 of 2015

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

And

Class 1 Form Pty Ltd

First Respondent

Tony Joseph Taleb

Second Respondent

Peter Zardo

Third Respondent

Elias Taleb

Fourth Respondent

REASONS FOR JUDGMENT

A person contravenes s.502 of the Fair Work Act 2009 (Cth) if that person intentionally hinders or obstructs an official of an organisation such as the applicant, to whom the Fair Work Commission has issued an entry permit, from exercising rights in accordance with Part 3-4 of that Act. To do so will render the person committing the contravention liable to the imposition of a pecuniary penalty.
In this case, the applicant alleges that on 19 January, 2015 at a construction site that I will refer to in these reasons as the Hudson Square Project Site, the third respondent refused to allow one of the applicant’s officers, Mr Garry Hamilton, to speak to a worker then working at the site. The applicant alleges that Mr Hamilton was attempting to exercise a right in accordance with Part 3-4 of the Fair Work Act. The relevant right that Mr Hamilton was purporting to exercise is said to arise from s.118(1)(b) of the Work, Health and Safety Act 2011 (ACT). Mr Hamilton held an entry permit under that Act as well as under the Fair Work Act. It is alleged that he was attempting to consult with a particular worker in relation to a suspected contravention of the Work, Health and Safety Act.
By its Further Amended Application filed 28 April, 2016 the applicant seeks a declaration and the…

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.

Keep reading for free

Create a free CaseChat account to read Construction, Forestry, Mining and Energy Union v Class 1 Fo... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 696
Decision Date: 7 April 2017

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) brought proceedings against Class 1 Form Pty Ltd in the Federal Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) and the *Work, Health and Safety Act 2011* (ACT). The CFMEU sought to establish that Class 1 Form had contravened provisions of the *Fair Work Act* relating to adverse action and the *Work, Health and Safety Act* concerning duties of care and the prohibition of discrimination against employees for exercising rights.

The primary legal issues before the Court were whether Class 1 Form had taken adverse action against certain employees for exercising workplace rights, specifically by terminating their employment, and whether the company had breached its duties under the *Work, Health and Safety Act* by failing to provide a safe working environment and by discriminating against employees who had raised safety concerns. The Court was required to determine if the evidence established the necessary causal link between the employees' exercise of rights and the adverse actions taken by the employer, and to assess the employer's compliance with its health and safety obligations.

In its reasoning, the Court applied the principles of statutory interpretation relevant to the *Fair Work Act* and the *Work, Health and Safety Act*. The Court considered the onus of proof under section 140(2) of the *Evidence Act 1995* (Cth) in civil proceedings, requiring the CFMEU to establish its case on the balance of probabilities. The Court analysed the evidence presented by both parties, including witness testimony and documentary evidence, to ascertain the reasons for the termination of employment and the circumstances surrounding the alleged breaches of health and safety duties. The Court found that the CFMEU had not discharged its onus of proof in relation to the adverse action claims, determining that the evidence did not establish that the adverse action was taken because the employees had exercised a workplace right. Similarly, the Court found that the evidence did not establish breaches of the *Work, Health and Safety Act*.

The Court ordered that the application by the CFMEU be dismissed.

Orders