CFMMEU officials fined for refusing to leave site

CFMMEU officials fined for refusing to leave site

The CFMMEU, and two of its officials, have received fines for refusing to leave a construction project due to safety concerns that led to scheduled night-time beam lifts being abandoned. The case highlights the legislative restraints imposed on permit holders when they enter workplaces.

Section 500 of the Fair Work Act 2009 (the FW Act) states, “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”.

The contraventions, in this case, occurred at the West Gate Tunnel Project in Victoria over a six-hour period between 9:30 pm on 3 December 2019 and 3:30 am on the following day being 4 December 2019. The project is a joint venture between construction giants John Hollands and CPB Contractors involving the widening of the West Gate Freeway and construction of a new bridge over the Maribyrnong River.

On the evening of 3 December 2019, Brett Young Cranes, a subcontractor on the project, planned to lift and install five bridge beams, each weighing about 16 tonnes. A temporary scaffolding deck around 4.5 metres high had been constructed for the purpose of ensuring each beam could land securely and safely prior to installation.

Shortly before the lifts were undertaken, workers raised concerns with the CFMMEU, and two organisers attended the site. Both organisers gained lawful access to the site, and each displayed their right of entry permits throughout.

After arriving, one organiser issued a notice of suspected safety contraventions, alleging that the Safe Work Method Statements (SWMS) were inadequate for the tasks being undertaken. Shortly thereafter, both officials climbed onto the scaffolding deck and, despite several requests, refused to leave. Their presence on the deck immediately prevented the lift as neither official had undergone a safety induction on the project.

The officials requested to be given copies of the SWMS. However, site management refused to allow the officials to view the documents while they remained on the scaffold deck. It was also suggested that the refusal was initially linked to concerns about the organisers filming the project superintendent.

Over the course of the night, both a WorkSafe inspector and various police officers were called to the project and had continuing discussions with the officials. Ultimately, the officials left the site the following morning. They did return a second time but were denied entry.

Although it was alleged that the officials’ behaviour warranted five contraventions of the FW Act, Justice Duncan Kerr determined that only three warranted financial penalties.

The first penalty related to a comment from the organiser to the WorkSafe inspector. At one point, the organiser had suggested to the inspector that he had not conducted an inspection “because you’re corrupt”. As Justice Kerr noted in reference to this comment, “The allegation Mr Tzimas made in the presence of others (including the police) involved a complete denigration of the WorkSafe inspector’s character”. A penalty of $3,150 was imposed on Mr Tzimas.

The second penalty related to the organiser being refused entry to the site. When denied entry on the second visit, the organiser said to a policeman, “You’re acting as a lap dog for John Hollands, denying us our rights to represent our workers”. In Justice Kerr’s assessment, “I am satisfied that the words Mt Tzimas then uttered in law are sufficient to constitute an instance of his acting in an improper manner. They imputed a base motive to Sgt Quirke for his conduct. There was no justification at all for that”. A penalty of $2,250.00 was imposed on Mr Tzimas.

Shortly after being refused access to the site, Mr Tzimas said to the Worksafe inspector that the refusal “exposes you for your incompetence…you’re a disgrace”.

Justice Kerr again took exception to this comment noting, “What Mr Tzimas did in this later event was to launch an unprovoked attack on (the inspector’s) character for no reason. It was an act of uncalled for and gratuitous abuse”. A third penalty amounting to $3,150.00 was imposed on Mr Tzimas.

Justice Kerr imposed a penalty of $3,780.00 on Mr Buckley, wholly suspended for two years largely on the basis that he had not directed offensive remarks to site management, the WorkSafe inspector or the police during the night.

Justice Kerr imposed a penalty of $18,900.00 against the CFMMEU.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) [2021] FCA 1414 (16 November 2021)

FAIR WORK ACT 2009 – SECT 500

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 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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