Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2)

In the case of Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2), the Fair Work Commission was tasked with determining whether officials of the Construction, Forestry, Mining and Energy Union (CFMEU) engaged in unlawful coercive conduct and improper conduct while exercising their rights of entry under the Fair Work Act 2009 (Cth). The allegations involved events that occurred during CFMEU's visits to construction sites in Darwin in June 2013, where it was claimed that the union officials acted aggressively and hindered the lawful operations of the construction projects.

The legal issues before the Commission included whether the conduct of the CFMEU officials amounted to unlawful coercive conduct under section 348 of the Fair Work Act, and whether their actions while exercising rights of entry constituted improper conduct under section 500. The definition of "improper conduct" was not explicitly outlined in the Act, leaving it to the Commission to interpret based on the circumstances and the nature of the conduct.

In its reasoning, the Commission found that the evidence presented established that the allegations against the CFMEU officials were substantiated. The Commission gave weight to the testimony of M Milatos, the project manager for the construction stage, who provided detailed and contemporaneous notes about the events, and whose reliability was further supported by his prompt reporting to the police. The Commission concluded that the CFMEU officials engaged in conduct that was aggressive and obstructive, and that their actions, particularly the manner in which they identified health and safety issues, constituted improper conduct under the Fair Work Act. The Commission's findings were based on a balance of probabilities, and it was determined that the union officials' conduct had contravened the provisions of the Act.

The Fair Work Commission upheld the allegations against the CFMEU officials, finding them to have engaged in both unlawful coercive conduct and improper conduct while exercising their rights of entry. The decision was based on the evidence presented and the interpretation of the relevant sections of the Fair Work Act. The Commission's findings have implications for the conduct of union officials when exercising their rights under the Act, emphasising the need for compliance with the prescribed standards of behaviour.