CFMMEU and former Organiser fined for aggressive and abusive behaviour on SA project

CFMMEU and former Organiser fined for aggressive and abusive behaviour on SA project

The Federal Court has imposed fines against the CFMMEU and a former organiser for engaging in aggressive and abusive behaviour towards a worker and a project manager on a construction site in South Australia in February 2020. The case underscores the relative success that the building industry watchdog, the ABCC, has achieved in recent years for prosecuting the union for breaches of the Fair Work Act 2009.

On 14 February 2020, two officials from the CFMMEU entered a construction site at the Morphettville Park Sports Club in South Australia and provided an entry notice under s119 of the WHS Act, signed by the Organiser. The notice identified three suspected contraventions of the WHS Act, including edge protection, access and egress across the site, and failure to provide a duty of care adequately.

While inspecting some scaffolding, the Organiser had the following conversation with a worker.

Organiser: “Who built this? This platform ladder is too high”.

Worker: “What’s the matter with the scaffold?”

Organiser: “You should know that. It’s your job. If you don’t, you’re an idiot”.

Worker: “That’s not how you should speak to people”.

Organiser: “I’ll speak to you however the f***k I want”.

Worker: “I wouldn’t want you representing me on site”.

Shortly thereafter, the Organiser said to the worker: “You keep going, you’ll never work in South Australia again” and moved towards him.

While inspecting the perimeter of a building at the site, the following interchange occurred between the Organiser and the Project Manager. Organiser: “What’s your f***king role here? Who runs the show on this Site? The safety is bad”.

Project Manager: “I’ll look into all the things you’ve identified. You know you can catch more bees with honey than you do with vinegar”.

In reviewing these two encounters, Justice Richard White described the actions of the Organiser in the following terms, “His conduct was unprovoked, unnecessary and involved a form of abuse of the statutory right of entry granted to him. Contrary to the submissions of the respondents, Mr J’s conduct has to be regarded as intentional. It was certainly not accidental or involuntaryIn my view, the penalties should be imposed on the basis that Mr J chose, in the absence of any provocation, to act aggressively, to use abusive language and to make a threat”.

Justice White imposed fines of $2,500 against the Organiser and $27,500 against the CFMMEU.

In their recently published Annual Report 2020-21, the ABCC detailed securing $13,905,975 in penalties against trade unions and their representatives since 2 December 2016 ($1,520,600 subject to appeal or further decision).

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Morphettville Park Case) [2021] FCA 1640 (23 December 2021)

For questions about safety, union right of entry, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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