Electrical Union and official fined for right of entry breaches

Electrical Union and official fined for right of entry breaches

Electrical Union and official fined for right of entry breaches

The Federal Circuit and Family Court has imposed fines against the CEPU Electrical Union and an official for right of entry breaches on a Brisbane project dating back to 2021.

On December 15 2021, Probuild Constructions Pty Ltd were building a 264-apartment residential tower at 443 Queen St, in Brisbane’s Central Business District. Temporary fencing and hoarding prevented access to the site, with three ‘gates’ in use for access to the site.

Each of the three gates had signage directing visitors to report to the site office.

On 15 December 2021, at around 6:30 am, a safety incident occurred on the project involving a crane load. As the load was being lowered onto a truck, the crane crew unhooked the load, but part of the load rolled off the side of the truck and fell into the loading zone.

Shortly afterwards, at around 7:30 am, Probuild representatives and subcontractor employees held a meeting in a workplace shed to discuss the incident from a safety perspective. At the conclusion of the meeting, employees started leaving the shed to return to work but were called back by a CFMEU delegate.

At the same time, a CEPU official, Wendel Moloney, entered the site and walked towards the shed where the safety meeting was being held. Mr Moloney did not report to the site office after entering the site.

A Probuild official approached him and requested that he sign the site visitor register and asked whether he had his Qld Work Health and Safety permit. Mr Moloney did not respond to the requests but instead entered the area and spoke to the workforce.

He then left the site and sent a text message to Probuild, which contained his entry notice.

In submissions before Judge Salvatore Vasta, Mr Moloney admitted contravening the Fair Work Act 2009 by failing to report to the site office and failing to provide his permits when requested. The CEPU acknowledged their role in being a party to Moloney’s improper behaviour.

The parties agreed to a pecuniary penalty of $24,000 for the union and $3,200 for Mr Moloney, which the court imposed.

As Judge Vasta noted,

“I am of the view that these penalties do meet the need for deterrence as espoused by the High Court. The penalty strikes the balance between oppressive and providing sufficient ‘sting’ to deter in both a specific and general sense”.

The prosecution was delayed due to the closing down of the Australian Building and Construction Commission by the federal Labor government after winning the 2022 election.

Fair Work Ombudsman v Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (443 Queen St Case) [2023] FedCFamC2G 957 (26 October 2023)

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 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.

Ref: 396.1123

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