CFMEU v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41: Jurisdictional Error and Appellate Review

Last Friday, 28 October 2016, the High Court handed down judgment in the case of CFMEU v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41. This judgment deals with issues such as the availability of constitutional writs where the HCA's original jurisdiction was invoked before the exhaustion of statutory rights of appeal, identifying jurisdictional error, and identifying judicial decisions and administrative decisions.

Background to the Case

The High Court case is on appeal from two separate judgments handed down by Collier J. in the Federal Court on 19 July 2016 - Director, Fair Work Building Industry Inspectorate v Bolton (No 1) [2016] FCA 816 and Director, Fair Work Building Industry Inspectorate v Bolton (No 2) [2016] FCA 817.

These two cases resulted from three separate cases in the South Australian courts in which the Director of the Fair Work Building Industry Inspectorate (the Director) sought declarations that provisions of the Fair Work Act 2009 (Cth) (the FW Act) had been breached, and that pecuniary penalties were appropriate.

In particular, in two of the cases where the CFMEU was the respondent, Lend Lease Building Contractors Pty Ltd (Lend Lease) was the head contractor on two construction projects, namely, the Southern Expressway Duplication (the SED Project) which was taking place at a site at 3 Majors Road, O’Halloran Hill, South Australia (the Majors Road Site) and the Tonsley Redevelopment Project (the TR Project) which was taking place at a site at Alawoona Avenue, Mitchell Park, South Australia (the Flinders University Site); and in the third case, Mossop Group Pty Ltd (Mossop) was the head contractor on a construction project known as St Mark’s College (the St Mark’s Project) which was taking place at a site situated at Kermode Street, North Adelaide (the Kermode Street Site).

On all three worksites, CFMEU officials attempted to hold conversations with employees in regards to s 484 of the FW Act (entry to hold discussions), in particular on the following days:

• 29 April 2014 at the Majors Rd Site;
• 22 May 2014 at the Flinders University Site; and
• 4 June 2014 at the Kermode Street Site

In all cases, the CFMEU officials had not provided the adequate entry notice for the purposes of s 487 of the FW Act and did not have authority to enter the premises. In its defence, the CFMEU admitted that the five CFMEU officials had, by their actions, contravened s 500 of the Act, and that, by reason of s 793, the CFMEU was taken also to have contravened s 500 as well.

All three matters were heard on 25 November 2015 in respect of penalties, prior to the delivery by the High Court of its judgment in Commonwealth of Australia v Director, Fair Work Building Industry Inspector [2015] HCA 46. The parties subsequently filed submissions as to penalty range.

On 16 May 2016, while judgment stood reserved, Charlesworth J delivered judgment in an unrelated matter, Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525, in which her Honour held that s 793 does not, of itself, fix upon a body corporate liability for contraventions found to have been committed by its officers.

On learning of Charlesworth J's decision, on 31 May 2016 the CFMEU sought to file in the Adelaide Registry of the Federal Court an interlocutory application for leave to withdraw the s 793 admissions. On 2 June 2016, Collier J ordered that the interlocutory application not be filed without leave of the Court and made directions for the filing of submissions as to whether leave should be granted. On 19 July 2016, Collier J ordered that leave to file the interlocutory application be refused.

The High Court Appeal

The grounds upon which the High Court Appeal was filed, are that:

• Collier J's interlocutory decision to refuse the CFMEU leave to file its application for leave to withdraw the s 793 admissions is vitiated by jurisdictional error;
• Collier J's penalty decision is vitiated by jurisdictional error constituted of Collier J proceeding on the basis that, as a result of the s 793 admissions, the Court had jurisdiction;
• Collier J's penalty decision is vitiated by jurisdictional error constituted of Collier J's holding that, by reason of s 793, the CFMEU was to be taken to have contravened s 500; and
• Collier J denied the CFMEU procedural fairness by failing to entertain the CFMEU's application for leave to withdraw the s 793 admissions and thereby failing authoritatively to determine the CFMEU's objection to jurisdiction and the application for leave to withdraw the admissions.

Nettle J at paragraph [26] said:

Nettle J found that the CFMEU's complaint of jurisdictional error was untenable however, due to the CFMEU's application for certiorari for error of law on the face of the record being arguable, exercised discretion in that there be no order as to costs.

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CFMEU v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41

Director, Fair Work Building Industry Inspectorate v Bolton (No 1) [2016] FCA 816

Director, Fair Work Building Industry Inspectorate v Bolton (No 2) [2016] FCA 817