FWO secures penalties against construction union and officials
The Fair Work Ombudsman has secured penalties in the Federal Court against the construction union, the CFMEU, and three of its officials who were found to have engaged in improper conduct at a road construction project in southeast Melbourne in November and December 2022.
The three officials, Paul Tzimas, Joseph McCrudden and Jimmy Harris, have been employed as organisers with the CFMEU’s Construction and General Division, Victorian and Tasmanian branch, for several years. All hold valid right of entry permits issued pursuant to the Fair Work Act 2009 (FW Act) and are authorised representatives for the purposes of the Occupational Health and Safety Act 2004 (Vic).
On 18 November 2020, Mr Tzimas and Mr McCrudden entered a road project in Victoria where upgrades were being undertaken to the Mordialloc Freeway near Bowen Parkway in Waterways, Victoria. During their visit, they raised concerns with site management about workers walking in hot conditions, questioned the adequacy of an emergency plan, and the potential for a generator to become electrified.
While discussing a material ‘CT’ used on pathways that might not have been properly sealed, Mr Tzimas said to the contractor’s General Superintendent and a health and safety manager ‘You’re pathetic’ and ‘You’re a disgrace”.
Shortly afterwards, Mr McCrudden said to the management representatives, ‘You’re f%*ked this time’.
On 2 December 2020, Mr Harris, on instruction from Mr McCrudden, attended a part of the project located near Woodlands Drive, Braeside. He claimed to have safety concerns about piling and excavation works and, during his visit, questioned the lack of flagging and bollards around a road barrier.
He subsequently approached two concrete trucks, asking the drivers to produce certain documents which they did not provide. He then stood in front of the trucks to impede their safe progression onto the site and refused repeated requests to allow the trucks to enter.
In the view of Federal Court Judge John Snaden, Mr Tzimas’ commentswere’improper’ within the meaning of s500 of the FW Act. The judge described the official’s conduct as” needlessly obnoxious and rude. It was relevantly improper”.
With regard to Mr McCrudden, Judge Snaden noted: “The conduct was self-evidently improper within the meaning of s 500 of the FW Act. It was, if nothing else, needlessly disrespectful, obnoxious and rude … petulant, obnoxious and regrettable”.
Judge Snaden briefly considered whether Mr McCrudden’s words could be considered a threat but concluded that the words used were relatively minor in nature.
However, Judge Snaden took a dimmer view of Mr Harris’ conduct. As he noted, it was “objectively, far more serious than that of either Mr Tzimas or Mr McCrudden. In any view, blocking trucks from proceeding onto a site is inherently aggressive. It is potentially dangerous … (and) involved an arrogant and provocative assumption of a power that he could not reasonably have thought that he possessed …”.
In setting appropriate penalties, Judge Snaden noted both Tzimas and McCrudden had previously been found in contravention of the FW Act.
He imposed fines of $3,990 on Mr Tzimas (approximately 30% of the maximum available penalty), $3,300 on Mr McCrudden, $6,600 on Mr Harris, and $95,000 against the union.
For questions about industrial action, union right of entry, dealing with delegates and organisers, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW 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: 447.0724
