Director of the Fair Work Building

The Director of the Fair Work Building Industry Inspectorate (the Director) commenced proceedings against the respondent, Mr. John Michael O’Sullivan, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned allegations that Mr. O’Sullivan, in his capacity as a site manager, had failed to comply with a notice issued under section 55 of the *Building and Construction Industry (Improving Productivity) Act 2013* (Cth) (the BCI Act), which required him to provide certain documents to the Director.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether Mr. O’Sullivan had contravened section 55 of the BCI Act by failing to produce the requested documents. This involved determining the scope of the Director's power to issue such notices and the nature of the obligation imposed on individuals to comply with them. The court also considered whether Mr. O’Sullivan had a valid defence to the alleged contravention.

Judge O’Sullivan found that the Director had properly exercised her powers under section 55 of the BCI Act and that Mr. O’Sullivan had failed to comply with the notice. The court reasoned that the purpose of section 55 was to facilitate the Director's investigations into potential contraventions of industrial relations legislation within the building industry. It was held that Mr. O’Sullivan’s assertion that he was unaware of the documents' existence or location did not constitute a defence, as the obligation was to produce the documents if they were in his possession or control, or to take reasonable steps to locate them. The court applied the principle that statutory obligations must be met diligently, and mere ignorance or lack of effort is insufficient to excuse non-compliance.

The court ordered that Mr. O’Sullivan pay a pecuniary penalty for the contravention.