Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2016] FCA 1140
•6 September 2016
FEDERAL COURT OF AUSTRALIA
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 1140
File number(s): VID 955 of 2015 Judge(s): NORTH J Date of judgment: 6 September 2016 Date of hearing: 6 September 2016 Registry: Victoria Division: General Division National Practice Area: Employment & Industrial Relations Category: No Catchwords Number of paragraphs: 9 Counsel for the Applicant: Ms S Kelly Solicitor for the Applicant: Construction, Forestry, Mining and Energy Union Counsel for the Respondents: Mr D Star with Mr A Pollock Solicitor for the Respondents: Maddocks ORDERS
VID 955 of 2015 BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE
Applicant
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent
ALEX TADIC
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
6 SEPTEMBER 2016
THE COURT ORDERS THAT:
1.The interlocutory application filed by the respondent on 2 September 2016, to adjourn the trial listed to commence on 7 September 2016, is refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
The applicant has commenced proceedings against the Construction, Forestry, Mining and Energy Union (CFMEU), and an union official, Mr Alex Tadic. In the application the applicant alleges that Mr Tadic, while exercising a right under part 3-4 of the Fair Work Act 2009 (Cth) (the Act), contravened s 500 of the Act by hindering a WorkSafe Victoria inspector and acting in an improper manner.
The liability of the CFMEU is asserted on three bases, namely, s 793 of the Act, s 550 of the Act and under the common law. The respondents apply to adjourn the trial of the matter. The trial is listed to commence tomorrow and is listed for three days. The reason for the application for adjournment is that a question has been raised about the liability of the CFMEU under s 793 of the Act.
That is an issue which has recently been raised in proceedings in the High Court. It is also a matter which may be dealt with by a Full Court of this Court in the February-March 2017 appeal sittings in two appeals from White J. There are a number of matters, estimated as between 16 and 23, presently before the Court in which the question of the liability of the CFMEU under s 793 of the Act is raised.
Ms Kelly, who appears as counsel for the respondents, raised the central issue of prejudice to the respondents if the trial is to proceed tomorrow. She argued that until the issue of liability under s 793 is clarified it will and does affect the manner in which the respondents engage with the applicant in pre-trial discussions.
Those pre-trial discussions may well have an influence in submissions which might be put in the event that the respondents are found to have contravened or be liable for contravention of the section. That is to say, the question of contrition and cooperation are matters relevant to the imposition of pecuniary penalties and unless the respondents know the position about liability under s 793, they are unable to advantage themselves by taking appropriate steps in those discussions.
For the applicant it would be a considerable inconvenience if the trial were not to commence tomorrow. It is easy to understand that the arrangements and preparations which have been made in order to commence the trial. If the trial were postponed much of that preparatory work would have to be repeated.
Mr Star, who appeared with Mr Pollock as counsel for the applicant, also drew attention to the difficulties of recollection as time passes between the events in 2014 and the trial date.
Ms Kelly made it clear that there was no submission that decisions in relation to the trial itself would need to be made which depended upon clarification of the law about s 793. Once that is understood then there is, in my view, no substantial basis for adjourning the trial. The position of the respondents concerning s 793 can be taken into account if the Court is ultimately called upon to consider the question of penalty. In other words, the extent to which the respondents might have been impeded in cooperation with the applicant as a result of the uncertainty about the law concerning s 793 would be a factor which might influence an assessment by the Court of the conduct of the parties prior to the trial.
Consequently, the argument in favour of an adjournment is not of sufficient significance to outweigh the inconvenience which would be caused by deferring the trial at such short notice. In the circumstances, the application for an adjournment is refused.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 6 September 2016
0
0
0