CFMMEU and NSW representatives fined for right of entry breaches on Pacific Highway project

CFMMEU and NSW representatives fined for right of entry breaches on Pacific Highway project

The Federal Circuit and Family Court have imposed significant fines amounting to $114,660 against Construction union giant the CFMMEU, and two of its officials, for right of entry breaches at the Pacific Highway upgrade project near Glenugie in northern New South Wales in 2019.

Judge Doug Humphreys fined the union and two officials, Dean Rielly and Paul Fitzpatrick, for their improper actions after entering the site on the Woolgoolga to Ballina Pacific Highway upgrade on 22 August 2019. Mr Rielly has been employed by the union for over six years and is responsible for the region from Grafton to Taree in New South Wales.

The penalties imposed resulted from an earlier decision, delivered on 23 May 2022, which determined that after entering the worksite lawfully as holders of work entry permits, both officials disrupted the project works by intentionally hindering or obstructing a concrete pour.

Both Mr Rielly and Mr Fitzpatrick intentionally positioned themselves in between the rear of a concrete truck and the site of a concrete pour, thereby preventing the truck from reversing towards the concrete pour area. As a direct consequence of their actions, the concrete pour was abandoned, and the contents of the concrete had to be dumped as they were no longer usable.

In determining the appropriate penalties to be imposed, Judge Doug Humphreys noted that there was no evidence of remorse or contrition on behalf of either organiser or the union. Judge Humphreys also acknowledged that both officials had undergone training regarding their legal requirements when entering a worksite.

In relation to Mr Rielly, Judge Humphreys noted, “The Court is satisfied that Mr Rielly took the lead role in the contraventions. At all times, Mr Rielly deliberately and intentionally refused to move away from the back of the concrete agitator until after the concrete pour was abandoned”.

In contrast, Judge Humphreys noted about Rielly’s co-organiser Mr Fitzpatrick, “… in relation to Mr Fitzpatrick, the Court is satisfied that he played a lesser role in the contraventions. Unlike Mr Rielly, Mr Fitzpatrick has no previous contraventions of the Act. This fact entitles the degree of leniency in relation to him as a first offender”.

With regard to the CFMMEU, Judge Humphreys scathingly noted, “This is a union which has a long and troubled history of breaches of the relevant workplace legislation. It is a Union that appears to have a preferred mode of business that accepts prosecutions for breaches of relevant legislation as an occupational hazard, and presumably the imposition of pecuniary penalties in the same casual manner”.

Judge Humphreys imposed pecuniary penalties of $100,800 against the union and fines of $8,820 against Mr Rielly, and $5,040 against Mr Fitzpatrick.

ABCC v CFMEU (Pacific Highway Upgrade Case) (No 4) [2022] FedCFamC2G 608 (4 August 2022)

For queries about unions, right of entry, safety matters, the ABCC, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 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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