Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Ironside Case)

Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Ironside Case) [2025] FCA 1664 is a Federal Court penalty decision about union right-of-entry conduct at two Melbourne construction sites occupied by Ironside Construction Pty Ltd. The Fair Work Ombudsman brought the case, the respondents admitted the contraventions, and the Court then decided whether to make declarations and what penalties should be imposed.

The admitted conduct was operational and concrete. It included turning off a site generator without warning, refusing requests to leave a construction zone while exercising OHS-related entry rights, causing an excavator to stop work, and accessing and photographing a site manager's computer screen without permission. The Court imposed penalties on individual officials and separate penalties on the union as an accessory.

For businesses, the case is a useful reminder that right-of-entry rights exist, but they do not override reasonable site safety requirements or excuse improper conduct.

Ironside Construction Pty Ltd was the head contractor and occupier of residential apartment developments in Melbourne in 2021. Between March and May that year, officials of the Construction, Forestry and Maritime Employees Union visited two of those developments and raised safety complaints. According to the judgment, the parties agreed that several acts during those visits contravened the Fair Work Act 2009 (Cth).

The first site was Artisan East at 1 Mills Boulevard, Alphington. On 17 March 2021, Mr James Simpson turned off the generator that provided power to the site without authorisation or warning to workers. The Court treated that as improper conduct while exercising rights under Part 3-4 of the Act.

The second site was the Orphic site on Mount Dandenong Road, Croydon. On 14 April 2021, Mr James Harris failed to comply with a request to leave a construction zone and remained there despite requests by the occupier. On 15 April 2021, Mr Simpson also failed to comply with a reasonable request to leave the construction zone. On the same day, Mr Paul Tzimas failed to leave the construction zone and also caused an excavator to stop work.

On 4 May 2021, Mr Jaxson Mahy accessed and photographed the computer screen of the Orphic site manager, Mr Joshua Schmitz, without permission.

The Fair Work Ombudsman alleged these matters and the respondents admitted them. The union also admitted that it was knowingly concerned in the officials' conduct, which exposed it to accessory liability under section 550.

Because the conduct and contraventions were admitted, the central issue was not whether the respondents had done the acts alleged. The Court had to decide whether declarations should be made and what pecuniary penalties were appropriate for the admitted breaches.

The judgment identifies two key provisions. Section 499 says that a permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

Section 500 says that a permit holder exercising, or seeking to exercise, rights under the right-of-entry part of the Act must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

The Court also had to deal with the union's position under section 550. The union admitted that it was knowingly concerned in the officials' contraventions. That matters because a person or organisation involved in a contravention can be taken to have contravened the Act as well. So the Court was not only assessing the conduct of the individual officials. It was also deciding the consequences for the union itself.

Dowling J held that it was appropriate to make declarations and impose penalties in respect of the admitted contraventions. The declarations were specific to each incident.

Mr Simpson was declared to have contravened section 500 on 17 March 2021 at the Artisan East site by turning off the generator without authorisation or warning. He was also declared to have contravened section 499 on 15 April 2021 at the Orphic site by failing to comply with a reasonable request to leave the construction zone, and section 500 by acting improperly through that same conduct.

Mr Harris was declared to have contravened section 499 on 14 April 2021 at the Orphic site by failing to comply with a request to leave the construction zone, and section 500 by remaining there despite requests by the occupier and by engaging in the conduct that constituted the section 499 contravention.

Mr Mahy was declared to have contravened section 500 on 4 May 2021 at the Orphic site by accessing and taking photos of the site manager's computer screen without permission.

Mr Tzimas was declared to have contravened section 499 on 15 April 2021 at the Orphic site by failing to comply with a request to leave the construction zone, section 500 by acting improperly through that same conduct, and section 500 again by causing an excavator to stop work.

The union was also declared to have contravened sections 499 and 500 because it was directly or indirectly, knowingly concerned in or party to the conduct of its officials, and was therefore involved in those contraventions for the purposes of section 550(2)(c) and taken to have contravened the Act under section 550(1).

The penalties in the orders were as follows. The union was ordered to pay $30,000 for Declaration 1(a), $28,000 for Declaration 1(b), $28,000 for Declaration 2(a), $28,000 for Declaration 3, $15,000 for Declaration 4(a), and $15,000 for Declaration 4(c). Mr Simpson was ordered to pay $7,500 for Declaration 1(a) and $5,500 for Declaration 1(b). Mr Harris was ordered to pay $4,000 for Declaration 2(a). Mr Mahy was ordered to pay $3,000 for Declaration 3.

Mr Tzimas was ordered to pay $3,750 for Declaration 4(a) and $3,750 for Declaration 4(c). The pecuniary penalties were ordered to be paid to the Commonwealth of Australia within 28 days.

This case is best read as a practical decision about conduct on site. It does not remove union entry rights, and it does not say every disagreement about safety will become a contravention. What it does show is that once a permit holder is on site, the occupier's reasonable OHS requirements still matter, and conduct that interferes with operations or site control can attract penalties.

The examples in the orders are useful because they are not abstract. They involve power supply, restricted construction zones, plant operations and access to on-site information. Those are ordinary site management issues for builders, subcontractors and project managers. A business that wants to reduce risk should focus on systems that work in real time, not just policies sitting in a folder.

That means identifying who speaks for the occupier, what the relevant site safety requirements are, how construction zones are marked, and how requests are communicated. It also means making sure managers understand the difference between a lawful request tied to a site OHS requirement and an ad hoc direction that may be harder to justify later. If an incident occurs, the business should preserve the exact wording of the request, who made it, where it was made, and what happened next.

One of the strongest practical themes in this decision is that site disputes are often judged later through documents and observable conduct. The Court's orders identify very specific acts: turning off a generator, remaining in a construction zone after requests to leave, stopping an excavator, and photographing a manager's computer screen. Those details matter because they are concrete and capable of being proved or admitted.

For businesses, that means incident management should be disciplined. If a request is made to comply with an OHS requirement, the business should be able to identify the requirement, the area it applies to, and the person who communicated it. If the issue concerns a restricted zone, the business should be able to show how that zone was identified on site. If the conduct affects plant, power or site information, the business should preserve evidence immediately.

Good records will not solve every dispute, but they can make a major difference if the regulator investigates or if the matter reaches court. The practical aim is not to create confrontation. It is to reduce ambiguity about what happened and why the occupier acted as it did.

Businesses often ask whether a right-of-entry dispute is mainly an industrial issue or mainly a safety issue. This case shows it can be both. The statutory framework considered by the Court links permit-holder conduct to compliance with reasonable OHS requests and to standards of proper conduct while exercising entry rights.

Another common question is whether only the individual official is at risk. Here, the answer was no. The union itself was penalised because it was found, on admissions, to be knowingly concerned in or party to the officials' conduct and therefore taken to have contravened the Act as well.

A further practical question is whether the occupier needs perfect paperwork before making a request. The judgment does not create a checklist of formalities, but from a risk-management perspective, businesses are in a stronger position if the relevant site requirement is clear, the request is specific, and the incident is documented promptly.

The judgment was delivered by Dowling J on 19 December 2025 in the Federal Court of Australia. The hearing date recorded in the judgment is 1 October 2024. The orders required the pecuniary penalties to be paid to the Commonwealth of Australia within 28 days.

This page explains the decision as a public case note. It focuses on the admitted conduct, the legal provisions identified by the Court, the declarations made and the penalties ordered.

This case note is based on the published Federal Court judgment and orders in Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Ironside Case) [2025] FCA 1664. The judgment records the admitted contraventions, reproduces sections 499 and 500 of the Fair Work Act 2009 (Cth), and sets out the declarations and penalties.

The page should be read as a practical explainer of the decision. If you need to rely on the case for litigation, compliance advice or a regulator response, the full judgment should be checked closely, including the Court's reasoning on penalty and any issues about course of conduct or double jeopardy referred to in the catchwords.