Fair Work Commission revokes CFMMEU officials’ entry right following upholding of appeal

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Fair Work Commission revokes CFMMEU officials’ entry right following upholding of appeal

The CFMMEU has suffered a double blow following the finalisation of proceedings arising from the Palmerston Police Station project in the Northern Territory in 2018. The Fair Work Commission accepted an application by the ABCC to suspend a union official’s federal entry permit for six (6) months and revoked his colleague’s permit as well as banning him for four (4) months from applying for a permit.

In a decision in October 2020, the Federal Court imposed penalties on the union and several officials totalling $292,200. A Full Federal Court recently upheld that decision. The Court rejected the union’s claim that the penalties imposed were `manifestly excessive’ in relation to the contraventions committed by the officials at the site.

In the initial decision, Justice White determined the behaviour of Mr M., a 25-year veteran organiser, towards two NT WorkSafe inspectors, amounts to improper conduct, stating, “Such officers should be able to discharge their duties without being subject to aggression or any form of intimidation”. This determination was affirmed in the decision of the Full Court.

The Full Court, referring to the intimidation directed at the WorkSafe inspectors, said:

“This contravention involved objectively serious conduct towards work heath safety inspectors, which may properly be regarded as more serious in the hands of a union which has a particular responsibility for ensuring that its officials behave appropriately, especially towards inspectors whose responsibilities are directed towards safe workplaces.”

In commenting on the need for a significant penalty to be applied to the union, Justice Bromwich endorsed the findings in the original judgment stating:

“The force of the threat was underlined by the fact that it was made by an organiser of a large well-resourced union well capable of exercising ‘industrial muscle'”.

The length of the officials’ suspensions is significant as they exceeded the Commission’s usual practice of imposing three-month suspensions. The officials had attempted to close the site due to safety concerns they raised with the builder Sitzler, relating to a lack of toilet facilities, lunchroom facilities, traffic management and an untested power generator.

In suspending the officials, FWC Deputy president A. Colman accepted that the safety concerns voiced by Mr M. and Mr T. were both genuine and legitimate. However, he commented that this did not diminish the seriousness of their conduct or their lack of contrition and remorse shown throughout the proceedings. As he stated, “Remorse is a powerful motivator that may weigh in favour of a conclusion that further contraventions are unlikely…(however) there has been no expression of remorse in this case”.

This decision means that ten Queensland CFMEU officials do not hold current federal entry permits. The ABCC maintains an updated list of officials whose permits have been suspended or revoked. Right of entry permit lists | ABCC

For queries about union entry or discussions with union officials, 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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