THE Construction, Forestry, Mining and Energy Union (CFMEU) has been fined $150,000 after the Federal Court found a group of union delegates had breached right of entry laws by failing to provide 24 hours’ notice of intended entry.
The Fair Work Building Industry Inspectorate commenced proceedings against five union delegates and the CFMEU following two incidents at the $75 million CBus construction site in Adelaide earlier this year.
In the first instance, two union officials failed to give adequate notice for entry when they gained access to the site apparently to discuss subcontractor Mitcon’s ‘use casual labour while laying off full time members’ at the New Royal Adelaide Hospital project.
Despite a phone call from the project manager requesting notice for entry the following day, a group of three union officials again approached the site, failing to give notice and refusing requests to view authority documents.
On the same day, three officials also used force against an on-site employee in an attempt to gain access to the site.
Justice Mansfield, of the Federal Court of Australia, held that none of the union delegates ‘expressed any contrition, or took any formal corrective conduct, in relation to conduct of the type constituting their contraventions’ of the Fair Work Act 2009.
“Counsel for the respondents acknowledged that the contravening conduct was undertaken by the conscious decision of each of them, knowing that there was a ‘flagrant’ breach of the law,’ Mansfield J commented.
“The explanation offered for that conduct is simply that there was a genuine interest in protecting the full-time Mitcon employees. That does not explain why there was any need to breach the provisions [of the Act], particularly … after the CFMEU had been formally notified of the need to give notice.”
In respect of the physical altercation, Mansfield J said the employee was ‘entitled to, and did, try to precent [the official] from entering the project’.
“Both [union officials] were prepared to use force to gain entry, when they knew they were not entitled to do so. It may be that, as counsel for [the union officials] said, the confrontation occurred in the heat of the moment. I accept that the forced entry… occurred without premeditation,” he said.
“It demonstrates a firm disregard for the entry provisions imposed by the legislation, and in the absence of explanation, that level of disregard is a quite significant one.
“That behaviour demonstrates that [the union official] not only did not care that he was breaking the entry rules, but that he was so indifferent to complying with them as to force entry and to make the threats to [employees].”
With consideration to a range of circumstances, including individual histories of the union officials, Mansfield J ordered fines totalling $152,000 from the CFMEU and its respondent members.
Click here to view the decision in full.