Construction company fined for right of entry breaches
The Federal Circuit and Family Court has imposed significant fines amounting to $100,000 against a construction company after determining several of their employees unduly delayed and refused access to union officials who were permit holders entitled to enter the site.
Richard Crookes Constructions Pty Ltd were the principal contractor on an inner Sydney building site, ‘Opera Residences’, involving the construction of 104 apartments over 19 levels, together with retail premises, a multi-level car park, and other improvements. On or about 7 August 2020, a worker at the site complained to his union that there was poor lighting in the southern fire stair at the site and asked the union to investigate.
On 12 and 13 August 2020, two officials of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), Mr Lawrence Duff and Mr Anthony Stegic, sought to enter the site. Both officials held valid entry permits issued pursuant to s 512 of the Fair Work Act 2009 and the Work Health and Safety Act 2011 (NSW).
At or about 9:50 am on 12 August 2020, both officials met the General Foreman and gave him a notice under s 119 of the WHS Act. He replied that he needed to get instructions from the Senior Project Manager. At or about 9:52 am, the Senior Project Manager directed him not to allow the two union officials entry to the site.
Several minutes later, the General Foreman told Mr Stegic and Mr Duff that he would not be letting them onto the site as he had been instructed not to do so. He also advised that the company was not letting anyone from the “CFMEU” or “ETU” onto the site and would look at the issues themselves.
Mr Stegic said that the company was intentionally denying, hindering and obstructing a permit holder, and he would be notifying a dispute with SafeWork New South Wales (being the regulator established under clause 1 of Schedule 2 to the WHS Act). The General Foreman said they should do what they had to do but that he was getting directions.
At or about 10:10 am, the Senior Project Manager attended the area out the front of the Site office where Mr Stegic and Mr Duff were present and asked what was happening. Mr Stegic said the company was in breach of the WHS Act. The Senior Project Manager replied that the company would investigate the issues raised by the union and that there was no need for Mr Stegic and Mr Duff to come onto the site. At or about 10:25 am, the two officials were allowed to enter the site.
After entering the site, the officials observed a number of issues, including an emergency lighting fitting that needed to be replaced, a number of trip hazards, a lack of temporary handrails for workers to prevent fall hazards, the basement area of the site filling with smoke haze and fumes, with a diesel odour emanating from it, a utility on level B6 with a diesel generator on the back of the utility running a pressure washer; and that diesel fumes emanating from the generator made it difficult to breathe and hazardous to conduct work.
Over the following days, the officials were rebuffed or delayed as they attempted to enter the site to examine the issues raised.
In determining appropriate penalties, Justice Scott Goodman noted that the company’s contravening conduct,
“was flagrant and deliberate. This is particularly so for the second and third contraventions on 13 August 2020, which occurred after Mr Stegic and Mr Duff and Mr (Y) identified particular health and safety issues the previous day, discussed them with Mr (D) and Mr (Y) and foreshadowed that they would return on 13 August 2020. The third contravention is more serious than the second, involving an outright refusal to allow Mr Duff onto the Site and Mr (Y) instructing a security guard to prevent Mr Duff’s entry after the security guard had barged into Mr Duff and blocked his entry. I also take into account that Mr (D) was a General Foreman and Mr (Y) was a Senior Project Manager, titles which suggest that each had some substantial level of responsibility within the respondent”.
Justice Goodman acknowledged the contrition shown by the company as well as the fact that neither the General Foreman nor the Senior Project Manager remained employed by the company.
For queries about unions, right of entry, safety matters, 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 firstname.lastname@example.org
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.