Hogan v Riley

Case [2010] FCAFC 30

FEDERAL COURT OF AUSTRALIA

Hogan v Riley [2010] FCAFC 30

Citation: Hogan v Riley [2010] FCAFC 30
Appeal from: Hogan v Riley [2009] FMCA 269
Parties: GERARD JOSEPH JOHN HOGAN
v
MICHAEL RILEY, WAYNE CLARK, BRENDAN BYATT and IQON PTY LIMITED
File number: ACD 33 of 2009
Judges: FINN, LANDER AND JESSUP JJ
Date of judgment: 1 April 2010
Catchwords:

MAGISTRATES – Case decided by reference to constructional point not raised by parties – Whether permissible course.

MAGISTRATES – Finding of fact that union organiser did not have reasonable grounds to suspect breach of occupational health and safety law – Organiser had sworn as to existence of reasonable grounds and not cross-examined on that testimony – Whether finding open in the circumstances.

INDUSTRIAL LAW – Territory occupational health and safety law giving union representative right to enter premises on reasonable suspicion of breach of law – Federal legislation regulating exercise of that right – Obligation on representative not intentionally to hinder or obstruct any person, or otherwise act in an improper manner – Prohibition on any person refusing or unduly delaying entry to premises by representative – Whether operation of prohibition dependant on representative complying with obligation not to hinder etc.

INDUSTRIAL LAW – Territory occupational health and safety law giving union representative right to enter premises on reasonable suspicion of breach of law – Federal legislation regulating exercise of that right – Obligation on representative not intentionally to hinder or obstruct any person, or otherwise act in an improper manner – Representatives seeking to exercise right of entry by stating only that there had been a “safety breach” and an “incident” – Whether refusal to state more amounted to hindering or obstructing any person or acting in improper manner.

Legislation: Workplace Relations Act 1996 (Cth) ss 756, 767, 824
Occupational Health and Safety Act 1989 (ACT) ss 37, 39, 77, 78
Date of hearing: 22 February 2010
Place: Canberra
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 29
Counsel for the Appellant: P McDonald
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondents: G C McCarthy
Solicitor for the Respondents: Macphillamy's

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 33 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

GERARD JOSEPH JOHN HOGAN
Appellant
AND:

MICHAEL RILEY
First Respondent

WAYNE CLARK
Second Respondent

BRENDAN BYATT
Third Respondent

IQON PTY LIMITED
Fourth Respondent

JUDGES:

FINN, LANDER AND JESSUP JJ

DATE OF ORDER:

1 APRIL 2010

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders made by the Federal Magistrates Court of Australia on 10 July 2009 be set aside.

THE COURT DECLARES THAT:

3.On 7 June 2007, Halafihi Kimonu Kivalu and Jason Lawrence O’Mara, authorised representatives for the purposes of Div 5.4 of the Occupational Health and Safety Act 1989 (ACT), were entitled to enter the construction site at the National Convention Centre, Canberra, for the purposes of s 767(3) of the Workplace Relations Act

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Hogan v Riley [2010] FCAFC 30
Case
[2010] FCAFC 30
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal by Halafihi Kimonu Kivalu and Jason Lawrence O’Mara, union representatives, against a decision made by the Federal Magistrates Court of Australia. The lower court had ruled that the representatives did not have reasonable grounds to suspect a breach of occupational health and safety law when they attempted to enter a construction site at the National Convention Centre in Canberra on 7 June 2007. This ruling was part of a broader dispute involving the representatives' rights under the Occupational Health and Safety Act 1989 (ACT) and their obligations under the Workplace Relations Act 1996 (Cth).

The legal issues before the court encompassed whether it was permissible to decide the case based on a constructional point not raised by the parties and whether the finding that the union representatives lacked reasonable grounds to suspect a breach was open, given that they had sworn to the existence of such grounds and were not cross-examined on this matter. Additionally, the court had to determine whether the prohibition on refusing or unduly delaying entry to premises by a union representative was contingent upon the representative complying with the obligation not to hinder or obstruct any person or otherwise act improperly. Another issue was whether the representatives' refusal to provide more details about the alleged "safety breach" and "incident" amounted to hindering or obstructing any person or acting in an improper manner.

The Federal Court allowed the appeal and set aside the orders made by the Federal Magistrates Court. It found that the union representatives were entitled to enter the construction site on 7 June 2007 and that they did not intentionally hinder or obstruct any person or act in an improper manner in seeking to exercise their rights of entry. The court concluded that the finding that the representatives lacked reasonable grounds was not open because they had sworn to the existence of such grounds and were not cross-examined on this testimony. The court also held that the representatives' refusal to provide more details did not constitute hindering or obstructing any person or acting in an improper manner. The case was remitted to the Federal Magistrates Court to determine whether any respondents refused or unduly delayed entry and to impose appropriate penalties if necessary.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the Federal Magistrates Court of Australia on 10 July 2009 be set aside.

THE COURT DECLARES THAT:

3. On 7 June 2007, Halafihi Kimonu Kivalu and Jason Lawrence O’Mara, authorised representatives for the purposes of Div 5.4 of the Occupational Health and Safety Act 1989 (ACT), were entitled to enter the construction site at the National Convention Centre, Canberra, for the purposes of s 767(3) of the Workplace Relations Act 1996 (Cth).

4. In seeking to exercise their rights of entry to the National Convention Centre site on 7 June 2007, Halafihi Kimonu Kivalu and Jason Lawrence O’Mara did not intentionally hinder or obstruct any person, and did not otherwise act in an improper manner, within the meaning of s 767(1) of the Workplace Relations Act 1996 (Cth).

THE COURT FURTHER ORDERS THAT:

5. The proceeding be remitted to the Federal Magistrates Court of Australia for the following purposes:

(a) to determine whether any, and if so which, of the respondents refused or unduly delayed entry to the National Convention Centre site of Halafihi Kimonu Kivalu and Jason Lawrence O’Mara, or either of them, on 7 June 2007, in breach of s 767(3) of the Workplace Relations Act 1996 (Cth);

(b) consistently with such determination or determinations, to impose such pecuniary penalties, if any, as are thought appropriate pursuant to s 769 of the Workplace Relations Act 1996 (Cth); and

(c) to make such incidental orders, including any orders as to costs, that are appropriate in the circumstances.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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