Court fines builder and senior managers for hindering union right of entry
The Federal Court has imposed significant fines against a builder and two of their senior managers for hindering attempts by union officials to exercise a right of entry onto a building project.
JW Land Construction Pty Ltd (JW Land) is a property development company that operates in Canberra and Melbourne, predominantly building residential properties, including high-rise complexes. It currently employs 23 full-time employees, supplemented by the engagement of sub-contractors.
In 2021, JW Land occupied the ‘Founders Lane’ site at Currong Street in the Australian Capital Territory. On 17 March 2021, a CFMEU official exercised rights to enter the site under ss 117 and 118 of the WHS Act (ACT). During the inspection, several electrical boards were found to be non-compliant.
As the inspection was not completed, the union indicated they would return the following day.
Both the Site Manager, Mr SH, and the Project Manager, MH, were aware of the union’s intention to return.
The following day, Mr Hoskus, a CFMEU official, arrived on-site. Whilst he was there, Mr SH indicated that the investigation had been completed or ‘closed out’ the day before.
Mr MH’s conduct involved giving the impression that an electrical inspector was required on site, that the suspected compliance issues had been investigated by other permit holders, and therefore, Mr Poskus could be delayed or not permitted to exercise his rights as a permit holder.
In the interim judgement before his honour, Judge Neville, JW Land that both managers were part of a cohort of employees responsible for right of entry, and were therefore aware that they could not refuse, delay or impede the exercise of a permit holder’s rights to investigate suspected contraventions.
Judge Nevile found that the representations and impressions given by the managers were ‘quite reckless and needlessly so’.
JW Land acknowledged that neither Mr MH nor Mr SH were disciplined for engaging in the contravening conduct nor expressed any remorse for their conduct.
(a) The conduct constituting the s 502(1) contraventions involved the delay for a period exceeding 40 minutes by Mr SH and Mr MH, where each of them delayed and obfuscated for the purpose hindering or obstructing Mr Poskus from exercising his entry rights.
(b) The conduct constituting the s 503(1) contraventions consisted of Mr SH and Mr MH making representations or giving the impression that Mr Poskus’ entry rights could be delayed for the purpose of waiting for an electrical inspector and that there were no rights of inspection where contraventions had been investigated by another permit holder.
AND
The CFMEU submitted that the conduct constituting the s 502(1) contraventions involved delay for a period exceeding 40 minutes. The Respondents submitted that the period of conduct was relatively short and the delay was between 17 to 32 minutes. The conduct in which Mr SH and Mr MH engaged in was not a “mere delay” as submitted by the Respondents but for a “considerable period of time” as found by his Honour Judge Neville.
As Judge Neville faced imminent retirement, the penalties were handed down by Federal Court Judge Sophie Bingham.
In a damning assessment, Judge Bingham noted that both managers ‘were experienced in and responsible for managing right of entry issues. The conduct engaged in, the representations made, and the impressions given were deliberate acts. Mr SH and Mr SH were responsible for the corporate culture of the Founders Lane site. I consider that in the circumstances, a higher penalty for the purpose of deterring any such future conduct is necessary”.
Judge Bingham imposed penalties for contraventions of the FW Act amounting to $3,300 for each of the managers and $33,300 against JW Land, with all penalties to be paid to the union.
For queries about right of entry, unions or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers– We Know Employment Law on 0417 622 178, 1300 925 529 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.
Ref: 470.1024
