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

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

The Federal Circuit and Family Court have imposed significant fines amounting to $495,000 against construction union giant, the CFMMEU, and three of its officials, for organising unlawful industrial action at the University of Melbourne Veterinary School (U-Vet) project site in Werribee Victoria in July 2018.

Justice David O’Callaghan fined the union, two officials, Kane Pearson and Paul Tzimas, and a shop steward, Mr M, who admitted to breaches of the Building and Construction Industry (Improving Productivity) Act 2016 (the Act) relating to organising employees at the site to engage in unlawful industrial action by refusing to perform work on several occasions.

Kane Constructions Pty Ltd was the head contractor at the U-Vet site for a four-storey extension to the veterinary hospital.

On 13 July 2018, at 8 am, Mr M, who was the CFMMEU shop steward and site health and safety representative, told a group of subcontractors that their superannuation and Incolink payments were not up to date and that they were not to return to work. They remained in the lunch shed before returning to work at 9 am.

At around 9:50 am, Mr Pearson entered the site and addressed workers at the conclusion of a toolbox meeting at 11 am. When confronted by a site representative, Mr Pearson yelled, “You can’t address my men, I’m not letting you address my men. You’re intimidating my men”. By 12:05 pm, all workers had returned to work.

On 26 July 2018, Mr Pearson and Mr Tzimas entered the site and met with Mr M. Shortly after addressing workers at the 9:30 am smoko break, they approached management and claimed that there were inadequate lux lighting levels in the level 4 stairway. They further advised management that workers would not return to work until the problem was resolved and that WorkSafe would attend the site.

Kane’s Project Manager inspected the lighting and considered it adequate. He entered the lunch sheds, advised workers of this, and told them that it would be considered unlawful industrial action if they did not return to work. The workers ignored the direction.

At about 11:30 am, two SafeWork inspectors attended the site and concluded that there was no reasonable cause for employees to be concerned for their health and safety. The union then addressed workers who eventually returned to work.

In determining appropriate penalties, Justice O’Callaghan noted with regard to the union, “The Courts have recounted the CFMMEU’s notorious recidivism on many occasions. It is a serial offender…”. Justice O’Callaghan also noted that Mr Pearson had been ordered to pay civil penalties in six previous proceedings spanning from 2009 to 2017.

Justice O’Callaghan imposed pecuniary penalties of $360,000 against the union, fines of $70,000 against Mr Pearson, $50,000 against Mr M, and $15,000 against Mr Tzimas.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The U Vet School Case) [2022] FCA 1068 (12 September 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 at 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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