RIGHT OF ENTRY – misuse of system – s.508 Fair Work (Registered Organisations) Act 2009 – application to restrict rights if organisation or official has misused permit rights – Director of the Fair Work Building Industry Inspectorate (the Director) alleged CFMEU and its officials misused rights of entry to a number of Lend Leases premises – the Director sought consequential orders restricting the exercise of rights of entry in the future – power exercisable under s.508 is dependent on the Commission being satisfied that an organisation or official misused right of entry rights – Commission must find two elements, whether the conduct occurred in the exercise or purported exercise of the statutory entry rights and whether the rights were misused – concept of misuse is a wide one and includes failure to produce a permit on request, failure to give an entry notice, entry other than during working hours or holding discussions other than during mealtimes or other breaks, failure to comply with a reasonable request by the occupier to comply with an OHS requirement and intentionally hindering or obstructing or otherwise acting in an improper manner – additionally conduct may amount to misuse where is it unlawful, is for an improper or collateral purpose or use of the right stops work – Commission to adopt approach distilled in CFMEU V FWC and Gregory Charles Alfred v Andrew Quirk – Commission found that a number of CFMEU officials entered various sights for a proscribed purpose and misused their right of entry powers – the Director submitted that if findings of misuse against individual respondents were made, their conduct is taken to have also been engaged in by the CFMEU – Commission found that CFMEU itself was involved in the misuse of entry permits held by its officials – the Director deferred submissions on the consequences of findings until the Commission made a determination – the CFMEU submitted that the power to make orders is discretionary – Commission to provide parties with opportunity to make submissions on the consequences of these findings – directions issued. Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union and others.
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