Penalties against the CFMMEU and Construction Site HSR

Penalties against the CFMMEU and Construction Site HSR.png

Penalties against the CFMMEU and Construction Site HSR

The Australian Building and Construction Commission (the ABCC) has secured penalties against the CFMMEU and a Site Delegate for unlawful industrial action on a Victorian tunnel project, although the presiding judge acknowledged there was some merit in safety concerns raised prior to the stoppage and ongoing training being provided by the union.

The case arose from an incident on 11 July 2019 at the Melbourne Metro Tunnel project involving Mr SP, an elected CFMMEU Site Delegate and Health and Safety Representative (HSR).

On this day, Mr SP directed two groups of workers that they were not to commence work due to “inadequate first aid facilities and inadequate lighting in a particular location of the worksite”.

Following his direction, a large number of workers remained in their crib huts for several hours before resuming work. During the stoppage, their employers ordered them to return to work and told them there was no immediate risk to their health and safety.

While acknowledging that the stoppage constituted `unlawful industrial action’, Justice Duncan Kerr expressed some sympathy for the delegates’ actions as he believed there was merit in the safety issues, which had been raised previously with site management. As he commented,

“I note, however, that the Court has concluded that Mr SP was motivated not only by a reasonable concern about the potential for his fellow workers being put at risk if a serious safety incident was to happen, but also some frustration at the inaction of the site superintendent in responding to the concerns about the first aid room that had been raised with him on 4 July 2019”.

Justice Kerr imposed penalties in the Federal Court in what he described as, “within, but at the lower end of, the mid-range” of $85,000 against the union, and a penalty of $5,000 against Mr SP, wholly suspended if he does not reoffend within three years.

In his decision, Justice Kerr was critical of the approach taken by the government watchdog, in this case, commenting,

“I reject the ABCC’s submission that his conduct was deliberate and serious to the extent it suggests a contemptuous disregard of the law or any degree of moral obloquy on his part…if he is re-employed in the construction industry he will come to that employment with a far better understanding of his legal rights and responsibilities in respect of safety and with a commitment not to reoffend”.

In referring to the union, however, Justice Kerr commented, “Unlike Mr SP the Union has a gross history of prior offending against industrial action”. He was prepared to acknowledge evidence presented by the union of their commitment to provide training to their officials designed to change what he described as “the cultural and normative conduct of the past routine contravening behaviours of its officers and employees. It has commenced rolling out that programme”.

Both issues affected the quantum of the penalties imposed. In addition, the parties privately agreed that the union would pay the ABCC’s costs in the sum of $10,000.

Australian Building and Construction Commissioner v P [2021] FCA 704 (fedcourt.gov.au)

For questions about the ABCC, union right of entry, 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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