Federal Court increases penalties on CFMMEU and official for right of entry breaches on appeal

Federal Court increases penalties on CFMMEU and official for right of entry breaches on appeal

The Fair Work Ombudsman (FWO) has succeeded in an appeal against the CFMMEU and a union official, resulting in increased penalties relating to the union contravening right of entry provisions in November 2018 during construction works at the Kiama Aged Care Centre, south of Sydney.

In the initial decision, Federal Court Anna Katzmann had imposed fines of $184,000, being $170,000 against the union, $11,000 against a former union official, Gerasimos Danalis, and $3,000 against a union official, Anthony Dimitriou.

The fines resulted from a finding of inappropriate behaviour by CFMMEU officials during the construction of the aged care facility. Mr Danalis had obstructed three concrete trucks, resulting in the concrete being wasted and concrete works being delayed. At one point, he approached a concrete pump and attempted to push the emergency stop on the pump.

Mr Danalis and Mr Dimitriou entered the site the following day, refused to undertake a mandatory visitor induction, and entered the site unaccompanied, despite reasonable requests from the site manager to comply with site rules.

Justice Katzmann made the following observations,

“I found that Danalis’s conduct exceeded the scope of his authority as a union official by attempting to interfere with the work being undertaken and the conduct of the business” and “While Dimitriou has exhibited no insight and expressed no contrition, and did not cooperate with the Commissioner, this was an isolated event and Dimitriou is a first “offender””.

The FWO lodged an appeal with the Full Federal Court seeking to increase the fines imposed upon Mr Dimitriou and the union.

After the matter was returned to Justice Katzmann for reconsideration on the penalties, she increased the fine imposed on the union to $250,000 and increased the fine placed on Mr Dimitriou to $4,000.

In her recent decision, Justice Katzmann noted,

(The CFMMEU) has expressed no regret, remorse or apology for the conduct of its officials and there is no evidence that it has taken any disciplinary action or imposed any sanction on Mr Dimitriou”.

CFMMEU penalty for unlawful conduct increased – Fair Work Ombudsman

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) (No 2) [2022] FCA 19 (21 January 2022)

For questions about union right of entry, dealing with union officials, 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: 399.1123

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