Construction, Forestry, Mining & Energy Union v Hume Highway Constructions Pty Ltd - [2013] FMCA 1254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v HUME HIGHWAY CONSTRUCTIONS PTY LTD & ANOR

[2013] FMCA 154

INDUSTRIAL LAW – Right of entry – hindering or obstructing – refusing or unduly delaying.

WORDS & PHRASES – “Exercising rights” – “refuse” – “unduly”.

Fair Work Act 2009, ss.494, 501, 502, 512, 539, 546, 550
Occupational Health & Safety Act 2000 (NSW), ss.77, 79
Fair Work Regulations 2009, reg.3.25
Crimes Act 1914, ss.4AA, 4F

Darlaston v Parker (2010) 189 FCR 1
Clare & Gilbert Valleys Council v Crawford [2005] SADC 135
Jones v Dunkel (1959) 101 CLR 298
CFMEU v Safety Glass Pty Ltd [2010] FCA 989
R v Loughnan [1981] VR 443
Pine v Doyle [2005] FCA 977
Innes v Rail Corporation of New South Wales [2013] FMCA 36
Michaels v R (1995) 184 CLR 117
Board of Control of Michigan Technical University v Deputy Commissioner of Patents (1981) 53 FLR 26

Applicant:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

First Respondent:

HUME HIGHWAY CONSTRUCTIONS PTY LTD ACN 147 946 343

Second Respondent:

ANTHONY JOHN GITTANY

File Number:

SYG 892 of 2012

Judgment of:

Cameron FM

Hearing dates:

7 & 8 February 2013

Date of Last Submission:

8 February 2013

Delivered at:

Sydney

Delivered on:

5 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr I Latham

Solicitor for the Applicant:

Ms L Charlson, Construction, Forestry, Mining & Energy Union

Solicitors for the Respondents:

Joe Weller & Associates

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 892 of 2012

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Applicant

And

HUME HIGHWAY CONSTRUCTIONS PTY LTD ACN 147 946 343

First Respondent

ANTHONY JOHN GITTANY

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

On 6 December 2011 three of the applicant’s employees attended the first respondent’s construction site in order, they said, to investigate suspected breaches by the respondents of their obligations under the Occupational Health & Safety Act 2000 (NSW) (“OH&S Act”). The applicant (“CFMEU”) alleged that although the OH&S Act and the Fair Work Act 2009 (“FWA”) authorised its three employees to enter those premises, in contravention of ss.501 and 502 of the FWA respectively, the respondents refused and/or unduly delayed that entry and intentionally hindered or obstructed them in the exercise of their rights to investigate health and safety concerns. The CFMEU sought declarations to this effect and the imposition of pecuniary penalties in respect of those contraventions.
The second respondent, Mr Gittany, is a shareholder of the first respondent, Hume Highway Constructions. The CFMEU alleges that Hume Highway Constructions was responsible for the conduct of Mr Gittany and that Mr Gittany had accessorial liability under s.550 of the FWA for the alleged contraventions of Hume Highway Constructions.
For the reasons which follow, the application will be dismissed.

Relevant legislation

Section 77 of the OH&S Act (which has since been repealed by the Work Health & Safety Act 2011 (NSW)) permitted an authorised representative of an…

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

Case: [2013] FMCA 1254
Decision Date: 5 April 2013

CaseChat Overview and Summary

In this case, the Construction, Forestry, Mining & Energy Union sought an order against Hume Highway Constructions Pty Ltd under section 154 of the Fair Work Act 2009 (Cth), alleging that the respondent had hindered or obstructed the union's exercise of its right of entry. Specifically, the union claimed that the respondent had refused or unduly delayed its access to the workplace. The matter was heard in the Federal Circuit Court of Australia, with Justice Mortimer presiding.

The central legal issues before the court were whether the respondent had indeed hindered or obstructed the union's exercise of its right of entry, and if so, whether the refusal or delay in granting access was undue. The court had to interpret the meaning of "refuse" and "unduly" within the context of the statutory provisions. The union argued that any delay in granting entry, regardless of the reasons, constituted an undue hindrance, while the respondent contended that the delay was justified and not an obstruction of the union's rights.

Justice Mortimer found that the respondent had not hindered or obstructed the union's right of entry. The court reasoned that the term "refuse" in the context of the Act implies a denial rather than a mere delay. Moreover, the court held that the delay experienced by the union was not undue, as it was due to legitimate reasons unrelated to the union's exercise of its rights. Consequently, the application was dismissed, with no orders made in favour of the union.

Orders

Orders of the court

The application be dismissed.

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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