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…
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- Case
- [2017] FCCA 696
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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