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

The Fair Work Building Industry Inspectorate brought an action against the Construction, Forestry, Mining and Energy Union (CFMEU) in the Federal Circuit Court of Australia. The dispute centred on allegations that certain union officials had contravened section 500 of the Fair Work Act 2009 (Cth). The respondents contested these allegations, with some admitting to the contraventions while others denied them. The primary legal issues the Court had to resolve were whether the third respondent was exercising or seeking to exercise a right under section 484 of the Fair Work Act to enter a site to hold discussions with employees and whether the third respondent had a standing invitation to enter the site. Additionally, the Court had to determine if the third respondent was invited to attend the site by a subcontractor, if he attended under a right of entry under the Work Health and Safety Act 2012 (SA), and if the applicant was required to establish that persons with the characteristics specified in section 484 were present on the site at the time the third respondent was seeking to exercise his right. The Court also had to decide whether the third respondent’s conduct was improper and if the CFMEU contravened section 500 by reason of the conduct of the second and third respondents.

The Court found that the third respondent, Mr Kirner, was not exercising or seeking to exercise a right under section 484 of the Fair Work Act to enter the site. Mr Kirner had not been issued a standing invitation by the principal contractor, Hindmarsh, and he did not have an understanding that he had the benefit of such an invitation. The Court also found that any invitation from Ausrise, a subcontractor, did not entitle Mr Kirner to enter the site without complying with the Fair Work Act. The Court accepted the evidence of Mr Staltari and Mr Bickerdike, who were unaware of the unauthorised entry and confronted Mr Kirner when they learned of it. The Court concluded that Mr Kirner’s conduct was improper and that the CFMEU contravened section 500 by reason of the conduct of the second and third respondents.

The Court ordered that the applicant was to file and serve minutes of the declarations to give effect to the Court’s findings. Consideration of the remaining issues in the trial was adjourned to a date to be fixed. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.