Construction, Forestry, Mining and Energy Union v Gittany

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FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164

Citation: Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164
Appeal from: Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Limited & Anor [2013] FMCA 154
Construction, Forestry, Mining and Energy Union v Hume Highway Constructions Pty Limited & Anor (No 2) [2013] FCCA 215
Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v ANTHONY GITTANY
File number: NSD 714 of 2013
Judge: COWDROY J
Date of judgment: 3 March 2014
Corrigendum: 12 March 2014
Catchwords:

COSTS – whether discretion of primary judge to award costs miscarried – whether application at first instance was commenced without reasonable cause – whether primary judge was required to refer to the discretion to award costs

INDUSTRIAL LAW – alleged contraventions of ss 501 and 502 of the Fair Work Act 2009 (Cth) – whether permit holders had been refused entry to, or were unduly delayed in entering, a work site – whether it was necessary for pleading at first instance to have been made out – whether imposing conditions upon the entry of permit holders onto a work site amounts to a refusal to allow entry
Legislation: Fair Work Act 2009 (Cth) ss 12, 481, 484, 494, 501, 502, 512, 539, 546, 570
Federal Circuit Court of Australia Act 1999 (Cth) s 42
Occupational Health and Safety Act 2000 (NSW) s 77
Cases cited: Auguste v Nikolyn Pty Ltd and Anor [2013] FCCA 1630
Board of Control of Michigan Technological University v Deputy Commissioner of Patents (1981) 53 FLR 26
Construction, Forestry, Mining and Energy Union v Safety Glass [2010] FCA 989
House v The King (1936) 55 CLR 499
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
Liberian Shipping Corporation v A King & Sons Ltd [1967] 1 All ER 934
Michaels v The Queen (1995) 184 CLR 117
Qantas Airways Ltd v Transport Workers’ Union of Australia (No 2) (2011) 211 IR 119
R v Moore; Ex parte Federate Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470
WZASQ v Minister for Immigration and Anor [2013] FCCA 1726
Date of hearing: 21 November 2013
Place: Sydney
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 56
Counsel for the Appellant: Mr I Latham
Solicitor for the Appellant: Construction, Forestry, Mining and Energy Union, NSW Branch
Counsel for the Respondent: Mr D Ash
Solicitor for the Respondent: Joe Weller & Associates

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164

CORRIGENDUM

1.In paragraph 56 of the Reasons for Judgment, delete the words ‘with costs’.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        12 March 2014


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 714 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:
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Details
Case
[2014] FCA 164
Decision Date

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) appealed against a decision of the Fair Work Commission (FWC) and a subsequent costs decision. The CFMEU argued that the FWC had erred in its findings regarding alleged contraventions of sections 501 and 502 of the Fair Work Act 2009 (FW Act) and in the costs awarded. The appeal was against Mr Gittany, as Hume Highway, the other party, was in liquidation. The CFMEU contended that the FWC misapplied the law in determining that there had been no contravention of section 502 of the FW Act, as the permit holders were not hindered or obstructed from entering the premises. The CFMEU also argued that the FWC erred in its findings regarding the contravention of section 501 of the FW Act. Finally, the CFMEU challenged the costs decision, arguing that the primary judge's discretion to award costs miscarried.

The court considered whether the primary judge correctly interpreted section 502 of the FW Act and whether the permit holders were hindered or obstructed from entering the premises. The court found that the primary judge's interpretation of section 502 was correct, and that the permit holders were not hindered or obstructed from entering the premises. The court also considered whether the primary judge correctly interpreted section 501 of the FW Act and found that the primary judge's interpretation was correct. Finally, the court considered whether the primary judge's discretion to award costs miscarried and found that it did not. The court noted that the proceeding was instituted without reasonable cause and awarded costs accordingly.

The appeal was dismissed, and there was no order as to the costs of the appeal unless an application was made within 14 days of the date of the order. The court found that the FWC's interpretation of sections 501 and 502 of the FW Act was correct and that the primary judge's discretion to award costs was not miscarried. The court's decision upheld the FWC's findings and the costs decision.

Orders

Orders of the court

1. The appeal be dismissed.

2. Unless an application is made for costs within 14 days of the date of this order, there be no order as to the costs of the appeal.

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

Background

Background to the litigation

Hume Highway is now in liquidation. As a result, the CFMEU only seeks relief on this appeal against Mr Gittany. The grounds of appeal relied upon by the CFMEU in its further amended notice of appeal may be separated into three categories, namely that the primary judge erred in his findings regarding:a)the alleged contravention of s 502 of the FW Act;b)the alleged contravention of s 501 of the FW Act; andc)the costs awarded in the second judgment.FACTS At about 8.00 am on 6 December 2011, whilst Hume Highway was undertaking construction work at a site known as 580 Hume Highway, Yagoona (‘the premises’), three state organisers of the NSW State Branch of the CFMEU, namely Brian Miller (‘Mr Miller’), Chikmann Koh (‘Mr Koh’) and Mansour Razaghi (‘Mr Razaghi’) (collectively referred to as ‘the CFMEU representatives’), entered upon the construction site for the purpose of investigating possible breaches of the Occupational Health and Safety Act 2000 (NSW) (‘the OHS Act’). There is no dispute that the CFMEU representatives were authorised representatives of the CFMEU, that each held the necessary entry and, by virtue of s 494 of the FW Act, that they were entitled to enter the premises. The CFMEU representatives were met on arrival at the premises by Mr Gittany and were permitted to carry out their inspection of the premises. After inspecting various areas, including an amenities room and a first aid area, the CFMEU representatives moved outside the premises to investigate a scaffold in an adjoining car park. A concrete pump associated with the building work was located in the car park. After at least one of the CFMEU representatives spoke to the operator, the pump was turned off and a proposed concrete pour was interrupted. Such conduct resulted in heated discussions between the CFMEU representatives and other workers on site as well as with Mr Gittany. Some violence followed, in consequence of which the police were notified. The police arrived approximately 15 to 30 minutes later and order was restored. In the intervening period, Mr Miller claimed that the CFMEU representatives were not permitted to re-enter the premises. The police remained for approximately 15 minutes and thereafter the CFMEU officials and a WorkCover inspector entered upon the premises unimpeded.LEGISLATIVE FRAMEWORK The FW Act allows for the issue of entry permits to officials of an organisation if Fair Work Australia (as it was then known) (‘FWA’) is satisfied that such an official is a fit and proper person to hold the permit: s 512 of the FW Act. A permit holder is permitted to enter premises in a range of circumstances, including to:a)investigate suspected contraventions of the FW Act: s 481;b)hold discussions with employees: s 484; orc)exercise State or Territory occupational health and safety rights pursuant to State or Territory legislation: s 494. ‘Premises’ is defined by s 12 of the FW Act to include any land, building or structure, or any part thereof.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The primary judge, at [23], awarded both Hume Highway and Mr Gittany half of their costs as ‘the proceeding was instituted without reasonable cause because approximately half of it was brought without reasonable cause’.SUBMISSIONS & CONSIDERATIONAlleged contravention of s 502Submissions The CFMEU submits that the primary judge erred by concluding first that no State or Territory OHS right was enlivened in connection with the inspection of the concrete pump in the car park (being the first asserted right referred to above), and secondly that the rights of entry being exercised by the CFMEU representatives ceased when they left the premises to inspect the concrete pump (being the second asserted right). The CFMEU in essence submitted that the first asserted right met the requisite constitutional criteria to be satisfied in s 494(2) of the FW Act by virtue of the breadth of the criteria contained in ss 494(2)(d)–(g): see [11] above. Mr Gittany argued that regardless of the breadth of the provisions in s 494(2), the primary judge correctly identified that the CFMEU only sought to rely on s 494(2)(a) before the FCCA, that being that the car park was occupied or otherwise controlled by a constitutional corporation. In respect of the second asserted right, the CFMEU referred to the explanatory memorandum to the Fair Work Bill 2008 (Cth) and the breadth with which s 502 was described. Specifically, the following provisions were drawn to the Court’s attention:1997.Clause 502 prohibits a person from intentionally hindering or obstructing a permit holder. This would cover behaviour such as making repeated and excessive requests that a permit holder show his or her entry permit, refusing entry despite the permit holder having an entry right under this Part or failing to provide access to records that the permit holder is entitled to inspect. It would also include, for example, deliberately altering rosters so that employees with whom the permit holder wished to meet were not present on the premises at the time of the permit holder's intended entry.…1999.Subclause 502(3) specifies that this clause covers action that hinders or obstructs a permit holder that is taken after an entry notice is given but before a permit holder enters the premises. This provision would ensure that any action taken before the permit holder enters the premises but which would hinder or obstruct that permit holder while on the premises is caught by this clause. An example of this type of conduct would include situations such as destroying, concealing or manufacturing evidence that relates to a suspected contravention which the permit holder is intending to investigate. It became apparent that the CFMEU contended for an interpretation of s 502 that encompassed hindrances or obstructions that occurred both prior to permit holders entering a premises, and in between consecutive entries to the same premises where those entries were only separated by a reasonable period of time. In that regard, the CFMEU’s submissions emphasised that the primary judge accepted at [88] of the first judgment that the inspection of the premises was incomplete when the CFMEU representatives entered the car park.