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In just 1 week
5 court judgments condemned illegal CFMMEU conduct.
The courts have handed out $822,500 in fines while stepping up judicial criticism, comparing the conduct with that of the disgraced Builders Labour’s Federation (BLF).
CASE #1:
‘DEFIANT’ AND ‘DISGRACEFUL’ CONDUCT ON BENDIGO SITE – ABCC v CFMEU (The Bendigo Theatre Case)
The Federal Court imposes $271,500 in penalties against the CFMMEU and two of its officials, Nigel Davies and Alex Tadic, for refusing to show their right of entry permits to gain access to a construction site. Both union officials then abused workers when asked to leave. Showing these permits is a requirement of both the Fair Work Act and state-based Work Health and Safety Laws for union officials to enter work sites when seeking to discuss industrial relations issues or safety concerns; Courts have recently noted that producing such a permit, where one is lawfully held, is not a difficult or cumbersome imposition.
Background
The ABCC alleged that Davies acted in an improper manner when he refused to produce his entry permit when asked to do so on multiple occasions spanning late July 2014. The Court found the allegations were made out, confirming that Davies told a project manager to ‘f**k off’ and ‘go away’ when asked to produce the permits. The Judge found Davies had a telling ‘absence of any contrition or provision of assurances relating to future conduct’. Tadic was found to have engaged in ‘a lengthy and foul-mouthed tirade’ when asked to explain his presence at the site on 1 August 2014. Justice Tracey found that Tadic had undertaken a ‘verbal attack… in the presence of others [which] continued for some minutes. The catalyst [of which] was a lawful and reasonable query regarding his presence at the site’. Like Davies, Tadic did ‘not exhibit any contrition for his contraventions… nor has he offered any assurances as to his future conduct’.
Penalties
As a result of the incidents the CFMMEU was penalised $245,000. The Union officials were also fined – for his role, Davies was penalised $19,000; for Tadic’s, he was penalised $7,500.
Breaches of the law
- Acting in an improper manner by not providing an entry notice, forcing a mobile phone in the face of an authorised site representative.
- Not presenting at the site office.
- Not signing the visitors book.
- Refusing a lawful request by the site occupier to produce the entry permit.
- Directing foul and dismissive language towards the authorised the site occupier.
- Refusing to comply with a lawful direction to leave the site and offering no viable explanation for that refusal.
CASE #2:
‘ROYAL COMMISSION WAS RIGHT’ – CFMMEU OFFICIALS RAVBAR, SUTHERLAND GUILTY OF DISCRIMINATION AGAINST CRANE SUPPLIERS – ABCC v Ravbar (and CFMEU)
The Federal Court has found that the CFMEU engaged in unlawful action by blockading a construction site, because the crane company hired for the job refused to sign a CFMEU deal. This was a case that garnered significant attention in the 2016 Trade Union Royal Commission – in fact, so much so that it captured 59 pages of the final report.
Background
It was alleged that multiple CFMEU officials undertook a structured campaign of industrial unlawfulness with the intention of forcing a crane supply company, Universal Cranes, into signing an enterprise bargaining agreement. Justice Reeves found that although not all the allegations made in the Royal Commission gave rise to charges being able to be brought, or breaches being able to be established, it was clear from evidence that the CFMEU and its officials had undertaken a campaign of discrimination and coercion against Universal Cranes. Justice Reeves found that high ranking CFMEU Officials, Ravbar and Sutherland, contravened sections 340, 343, 354 of the Fair Work Act – all discrimination provisions – when they blockaded the site for unlawful purposes.
Penalties
Penalties have not yet been handed down as a result of the decision, however Justice Tracey has invited submissions on how the penalties should be dealt with. He has confirmed that the CFMEU will be held jointly liable for the conduct of the officials. On our count however, there are at least 3 breaches of civil remedy provisions of the Fair Work Act – each of which attracts a maximum penalty of $63,000 for the CFMEU, and $12,600 for the official. Although we do not seek to pre-empt the Courts penalty judgment, it seems that the total penalty available is at least $220,000 – it could be higher.
Breaches of the law
- Discriminating against a person because they have a workplace right, have exercised a workplace right, or propose not to exercise a workplace right – or to prevent the exercise of a workplace right by a person.
- Organising, threatening to organise, or taking action to coerce a person to exercise, or not exercise a workplace right, or to exercise such a workplace right in a particular way.
- Discrimination against an employer, because they are covered, or not covered, by a particular type of workplace instrument, or their employees are not covered by a certain enterprise agreement.
CASE #3:
FEDERAL COURT: ‘THE CFMEU CANNOT EXPECT TO REMAIN REGISTERED’; ‘THE MOST RECIDIVIST CORPORATE OFFENDER IN AUSTRALIAN HISTORY’ – ABCC v CFMEU (The Broadway on Ann Case)
Federal Court judges have said that the CFMEUs history of conduct is ‘disgraceful’ and ‘shameful’, when they reaffirmed the imposition of the maximum penalties available because of the actions of then Divisional President, David Hanna. The Court confirmed the finding of a single judge, Justice Vasta, in that Hanna entered a construction site illegally, abused workers, squirted water in the face of a construction manager, and created genuine safety concerns by facilitating the exit of a number of workers from the site. They imposed a fine of $306,000.
Background
In October 2017, Justice Vasta handed down the original decision in the case. He found that Hanna ‘acted in this most abhorrent way’ and went on to find that:
“these were not the actions of some over-exuberant maverick of the CFMEU; these were the actions of the President himself…. There has been no condemnation, or even apology, for the actions of Mr Hanna on this day from the CFMEU. It is no understatement to describe the CFMEU as the most recidivist corporate offender in Australian history….It can only be inferred that the CFMEU condone such actions and approach the imposition of pecuniary penalties as occupational hazards in the performance of their business plan, whatever plan that may be.”
Notably, Justice Vasta also said (our emphasis):
“It may have been expected that there would be righteous condemnation of any person compromising safety on the work site coming from a union that purportedly exists to ensure safety on worksites. The silence from the CFMEU, however, has been deafening.”
The CFMEU appealed the decision to a bench of three Federal Court Justices – the majority of which affirmed the Justice Vasta’s decision to impose the maximum penalties. Justice Logan said imposing the maximum penalties, being $306,000 was ‘a cruel necessity’, hoping that doing so may provide some motivation for ‘the CFMEUs internal governance to bring about change’. Agreeing, Justice Tracey said that the CFMEUs conduct had continued to such a point where:
“there is an irresistible inference that the CFMEU has determined that its officials will not comply with the requirements of the Fair Work Act with which it disagrees. If this results in civil penalties being imposed, they will be paid and treated as a cost of the union pursuing its industrial ends. The union simply regards itself as free to disobey the law“
Breaches of the law
- A permit holder must not hinder or obstruct any person when exercising, or seeking to exercise, any right the permit affords.
CASES #4 :
FEDERAL COURT: UNION OFFICIALS CONDUCT ‘INSULTING, DEMENAING, INDECENT AND PROFANE’ – ‘SHOULD NOT HAVE BEEN ON SITE’
In dealing with two cases arising from the conduct of CFMEU officials Kevin Harkins and Richard Hasset on the Brooker Highway Project site and Parliament Square Stage sites, the Federal Court has described the officials conduct ‘insulting, demeaning, indecent and profane’. Justice Tracey confirmed that the officials ‘should not have been on site in the first place’ and ‘he should have complied with the requirements of the [Fair Work Act] once he was’. In both cases, the officials failed to gain lawful entry to the site and abused workers, in one instance calling a project manager a ‘f**king c*nt* and abusing a site WHS representative.
Background
The ABCC alleged that Kevin Harkins and Richard Hasset sought entry constructions sites in Tasmania. Entry was refused to the sites by site controllers as the officials refused to comply with entry requirements under the Fair Work Act – instead of doing that, they told workers to shut power off to the site so that it would be shut down for the say. On both occasions the officials hurled a litany of abuse at workers. The ABCC alleged that the CFMEU officials said (amongst other things) to company representatives:
- ‘He is a f**king incompetent c*nt’. Always using his words to push the code compliance and Fair Work bullsh*t to me’.
- ‘You know we don’t do that. My boss is bigger than your boss. This is a bullsh*t law and why would we comply with it?”
- ‘We don’t recognise the Code and you know you’re not going to get Right of Entry notices so you’re just causing a fight.’
- ‘I f**in’ have all the power, you HR d*ck don’t know the regulations or OHS’
- ‘I shut it f**king down. There is no power and so everyone has to go f**king home. Thank you incompetent d*ck-f*ck Johnnie. Little Johnnie f*cks himself up.”
- “This could have been easy…… But no, you are the only one that sticks to this Fair Work sh*t. You may as well call the police if that’s what you are going to do.”
Penalties
As a result of the incidents the CFMEU was penalised $220,000. Hasset was also fined a further $25,000 for his role.
Breaches of the law
- Aggressively and repeatedly using foul, insulting, demeaning, indecent and profane language.
- Failing to give notice under the Fair Work Act prior to seeking entry to a site.
- Acting improperly in exercising rights as a permit holder under the Fair Work Act.
- Illegally entering and remaining on a construction site.