Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union

The case involved the Director of the Fair Work Building Industry Inspectorate (Applicant) versus the Construction, Forestry, Mining and Energy Union (Respondent) and several individuals (Respondents), where allegations of contraventions under the Fair Work Act 2009 (Cth) were made. The Applicant sought to establish that the Respondents had contravened various sections of the Act, including sections 346, 348, 499, and 500, at different building sites. The primary legal issues the court had to determine were whether the Respondents had entry permits, whether they were exercising or seeking to exercise rights under Part 3-4 of the Act, whether their actions were improper, and whether their entry onto the worksite was authorised. Additionally, the court had to decide whether the CFMEU contravened specific sections of the Act by the conduct of individual respondents.

The court analysed the evidence and admissions made by the parties. It found that certain respondents had contravened sections 500 and 348 of the Act at the Flinders University site on 30 October 2013. The court accepted the evidence of the Project Manager and the Site Operations Manager, who provided reliable accounts of events at the TAFE site. The court determined that Mr Gava and the CFMEU contravened section 500 by acting improperly while seeking to exercise rights under the Act at the TAFE site. The court also found that the Respondents contravened section 348 by threatening to take action against a contractor to coerce them into flying the CFMEU flag on the crane hook, and that one respondent was liable as an accessory. However, the court dismissed the claims regarding section 346, as the head contractor did not propose to engage in industrial activity within the meaning of the Act. Furthermore, the court found that one respondent contravened section 499 by failing to comply with an occupational health and safety requirement.

The court concluded that the alleged contraventions of section 346 were not established, and that part of the Director's claim must be dismissed. The court ordered that the Applicant file and serve minutes of the declarations and other orders appropriate to give effect to the Court's findings, and that the consideration of those minutes, the imposition of penalties, and any consequential matters be adjourned to a date to be fixed.