CFMMEU fined for right of entry breaches in WA for a failure to be escorted when on site

CFMMEU fined for right of entry breaches in WA for a failure to be escorted when on site

The CFMMEU and a WA official have received fines in the Federal Court for contravening right of entry legislation by breaching right of entry provisions at the NEXTDC P2 Perth Data Centre project on 5 December 2019.

The contraventions involved a union official, Stephen Parker, refusing to comply with site safety instructions on the project, including the requirement to be escorted by a site representative at all times. He had been advised of these requirements on previous visits to the site.

The head contractor had previously advised him that the escort could be either the Site Manager, Site Supervisor or HSE Advisor.

Section 500 of the Fair Work Act 2009 Act provides that a permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person or otherwise act in an improper manner.

At one point, Mr Parker blocked the access of workers removing door frames from a truck. Despite repeated requests to move, he refused to do so, and ultimately, the workers had to move around him, causing delays to the installation of the door frames.

In her determination, Justice Katrina Banks-Smith rejected submissions on behalf of the union that Mr Parker may have been confused about the requirement to be escorted when on site. As she noted,

“I also accept the Commissioner’s submission that the agreed facts indicate that Mr Parker was twice in places on the Site that he should not have been without an escort: first, when he walked onto the Site and had to return to sign the visitors’ register; and second, when he then returned further onto the Site having signed it”. Justice Banks-Smith further noted, “Mr Parker understood that he required an escort on Site, but regardless he moved around the Site unescorted, albeit for a relatively limited period”.

In determining an appropriate penalty for the contraventions, Justice Banks-Smith noted, “There remains…the need for deterrence, including specific deterrence that takes into account the healthy position of the Union”.

Justice Banks-Smith imposed a penalty of $18,000 on the CFMMEU.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NEXT DC P2 Project Case) [2022] FCA 37 (31 January 2022)

For questions about unions, safety, right of entry, 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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