Hogan v Riley and Ors (No.2) - [2010] FMCA 760

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOGAN v RILEY & ORS (No.2)

[2010] FMCA 760

INDUSTRIAL LAW – Union rights of entry – entry to premises under ACT occupational health and safety legislation – entry refused at direction of managers and site foreman – liability admitted – appropriate penalty – pervasive misapprehension that notice was required – penalty of $10,000 on building company – penalty of $1,000 on director and project manager – no penalty on site foreman.

Building and Construction Industry Improvement Act 2005 (Cth)
Fair Work Act 2009 (Cth)
Occupational Health and Safety Act 1989 (ACT), ss.77, 78, 79, 80
Workplace Relations Act 1996 (Cth), ss.756, 757, 758, 759, 767, 769, 824, 826, 841
Workplace Relations Amendment (Work Choices) Act 2005
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)

BGC Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (2004) 140 FCR 53
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39
Construction, Forestry, Mining and Energy Union v Merhis Constructions Pty Ltd [2010] FMCA 751
Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417
Dalzell v Ferguson (2009) 185 IR 392
Hogan v Riley [2009] FMCA 269, (2009) 186 IR 267
Hogan v Riley & Ors [2010] FMCA 408, (2010) 195 IR 326
Hogan v Riley [2010] FCAFC 30, (2010) 182 FCR 583
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Being There: Changing Union Rights of Entry under Federal Industrial Law (2000) 13 AJLL 1

Applicant:

GERARD JOSEPH JOHN HOGAN

First Respondent:

MICHAEL RILEY

Second Respondent:

WAYNE CLARK

Third Respondent:

BRENDAN BYATT

Fourth Respondent:

IQON PTY LIMITED (ACN 008 595 122)

File Number:

CAG 57 of 2007

Judgment of:

Smith FM

Hearing dates:

31 August 2010
1 September 2010

Delivered at:

Sydney

Delivered on:

12 November 2010

REPRESENTATION

Counsel for the Applicant:

Ms P McDonald

Solicitors for the Applicant:

Australian Government Solicitor

Counsel for the Respondents:

Mr G McCarthy

Solicitors for the Respondents:

Macphillamy's

THE COURT DECLARES

Michael Riley, Wayne Clark, and Brendan Byatt were in breach of s.767(3) of the Workplace Relations Act 1996 (Cth) on 7 June 2007, when each of them refused entry to the construction site at the National Convention Centre, Canberra, to Halafihi Kimonu Kivalu and Jason Lawrence O’Mara, who were entitled to enter the premises under s.77 of the Occupational Health and Safety Act 1989 (ACT) and s.756 of the Workplace Relations Act 1996 (Cth).
Iqon Pty Ltd (ACN 008 595 122) is taken to have been engaged in the same conduct as Michael Riley, Wayne Clark, and Brendan Byatt pursuant to s.826(2) of the Workplace Relations Act 1996 (Cth), and was also in breach of s.767(3) on 7 June 2007.

THE COURT ORDERS

A penalty of $10,000 is imposed on Iqon Pty Ltd (ACN 008 595 122) under s.769(1) of the Workplace Relations Act 1996 (Cth) for its breach of s.767(3).
A penalty of $1,000 is imposed on Brendan Byatt under s.769(1) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 760
Decision Date: 12 November 2010

CaseChat Overview and Summary

The case of Hogan v Riley and Ors (No.2) involved a dispute between Gerard Joseph John Hogan, an inspector under the Building and Construction Industry Improvement Act 2005, and Michael Riley, Wayne Clark, Brendan Byatt, and Iqon Pty Limited (ACN 008 595 122). The proceedings sought the imposition of pecuniary penalties for breaches of the Workplace Relations Act 1996 (Cth) by the respondents in relation to events on 7 June 2007, occurring on a building site for the refurbishment of the National Convention Centre in Canberra.

The legal issues the court was required to decide involved whether the respondents were in breach of s.767(3) of the Workplace Relations Act 1996 (Cth) by refusing or directing the refusal of entry to the construction site by Halafihi Kimonu Kivalu and Jason Lawrence O’Mara, who claimed to hold authorities and permits issued under the Occupational Health and Safety Act 1989 (ACT) and the Workplace Relations Act 1996 (Cth), which gave them a right to enter the premises without prior notice for the purpose of investigating possible contraventions of the OH&S Act.

The court found that Messrs Riley, Clark, and Byatt were in breach of s.767(3)(b) by refusing or directing the refusal of entry to the officials at the site gate, and were each liable to a maximum penalty of $6,600. It also found that Iqon was vicariously liable for their conduct, to a maximum penalty of $33,000. The court imposed a penalty of $10,000 on Iqon Pty Ltd (ACN 008 595 122) for its breach of s.767(3) of the Workplace Relations Act 1996 (Cth). It also imposed a penalty of $1,000 on each of Mr Byatt and Mr Riley for their breach of s.767(3). The penalties were to be paid to the Commonwealth pursuant to s.841 of the Act.

Orders