The Australian Building and Construction Commission (ABCC) continues its active investigation and prosecution of workplace law breaches, with a number of recent cases highlighting its important role in upholding compliance.

CFMMEU penalised $119,300 for unlawful entries on Melbourne building sites – officials hit with personal payment orders

The Federal Court last week penalised the CFMMEU and its officials Stephen Long and Drew MacDonald $119,300 over repeated unlawful entries and making threats on two Melbourne construction sites in 2014.

And for only the third time the Federal Court has ordered the officials to personally pay their penalties. The personal payment orders prevent the CFMMEU from paying Mr MacDonald’s and Mr Long’s penalties.

The Court has imposed significant penalties with the CFMMEU ordered to pay $100,000, Mr Long ordered to personally pay $11,500 and Mr MacDonald ordered to personally pay $7,800.

ABCC Commissioner Stephen McBurney said the penalty judgment sent a strong message to the CFMMEU and its senior leadership that its unlawful behaviour will not be tolerated.

“The decision of the Court today to impose personal payment orders reinforces the earlier guidance provided by the High Court,” he said.  Ultimately, if a penalty is devoid of sting or burden, it will not have any deterrent effect.  The greater the sting or burden of the penalty, the more likely it will be that the union officials will be deterred from future contraventions.

“The Court has again highlighted the litany of contraventions for the CFMMEU, the significant financial penalties, and the pointed judicial criticism.  Yet we see no measures put in place to change the culture or the conduct of the officers and employees of the Union.

“We will hold contraveners to account as we have done in this case.  Penalties imposed this financial year in ABCC litigation now total $4.221 million for the CFMMEU and its officials, and $36,200 for the rest of the industry.  We stand ready to assist any victim of unlawful conduct.”

Federal Court penalises company for terminating subbies’ contract over late union fees

Commercial painting business Prolac P/L and its director Tim Petrusic have been penalised $16,200 for terminating a subcontractor’s contract on the EQ Tower project in Melbourne‘s CBD in 2017.

Prolac had admitted to taking adverse action against the painting subcontractor when it terminated his contract because he was not up to date with his CFMMEU fees.

In the same matter, the Federal Court in April this year imposed $78,000 in penalties against the CFMMEU and shop stewards Maurice Campanaro and Joe Caratozzolo after they were found to have coerced the subcontractor to pay his outstanding fees.

Mr Campanaro and Mr Caratozzolo told the subcontractor he had to pay his fees to the CFMMEU before he could work at the Trillium Project and EQ Tower construction sites.

Despite paying his fees on 15 February 2017, Prolac terminated the contract with the subcontractor the following day.

ABCC Commissioner Stephen McBurney said the penalty against Prolac and its director recognises the need for companies to respect workplace rights and ensure subcontractors are protected from adverse action.

“There is no place for “closed shops” in Australian workplaces,” Mr McBurney said.

“The union officials in this case threatened the worker’s livelihood and coerced him into paying union membership fees on two separate occasions.

“It is unacceptable for an employer to terminate an employee because they are not a member of a union.”

Federal Court penalty on CFMMEU Victorian official backs up rulings on right of entry laws

A Federal Court penalty judgment has reaffirmed earlier High Court and Full Federal Court rulings that union officials must hold valid federal entry permits when exercising rights of entry under state or territory OHS laws.

The Federal Court ordered Victorian CFMMEU official Michael Powell to pay $2,600 after he entered the Aquanation site in Ringwood on 21 May, 22 May, 15 July and 28 October in 2014 without a valid federal right of entry permit and refused to leave when asked to do so.

During his site entry on 22 May, Mr Powell had to be removed by Police from the site after he refused to leave. At the time of the unlawful entries, Mr Powell said he was at the site under state OHS laws.

When the proceeding first came before the Court, the ABCC submitted that even where union officials were invited onto a site by a health and safety representative to assist them, the union official must hold a valid federal right of entry permit under the Fair Work Act.

The Federal Court initially dismissed the ABCC’s case. However, following an appeal to the Full Federal Court, the original decision was set aside and the Full Court unanimously confirmed the ABCC’s position.

An appeal by Mr Powell to the High Court was unsuccessful and Mr Powell was ordered to pay the ABCC’s legal costs.

The ABCC remains in place to ensure building and construction industry participants’ compliance with Australia’s workplace laws.

As a consistent supporter of the ABCC since it was first recommended by the Cole Royal Commission in 2003, AMMA recently provided input into a review of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act), reiterating industry’s support for the regulator’s retention.

Further, AMMA continues to support the passage of the “Ensuring Integrity Bill“, which contains various measures seeking to lift the standards, behaviours and transparency of all registered organisations including trade unions and registered employer groups.

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