CFMEU Grilled over Unauthorised Entry

Key Takeaways

Employers can and should keep Union officers accountable for “improper conduct”, especially when in brazen disregard for the obligations that come with Right of Entry privileges.
Significant civil penalties can be imposed for “improper conduct”, and Union officials can be required to personally bear those costs.

Facts

Since 2019, several companies under the CIMIC Group (Occupier) have been contractors to the Cross River Rail Project in Brisbane.
In August 2021, the Construction, Forestry, Maritime, Mining and Energy Union (First Respondent), Michael Ravbar (Second Respondent), and Andrew Robert Blakely (Third Respondent) attended the Cross River Rail worksite at two different locations (Gabba Worksite and Roma Street Worksite) on two mornings to host an unauthorised barbecue on the worksite.
The Occupiers had no prior knowledge nor provided authority about holding a barbecue on the worksite.
During the barbecue, the Second and Third Respondents addressed 50 workers on 19 August 2021 and about 25 workers on 24 August 2021 about safety on site and work conditions.
As a result of these events, the work on the worksite was delayed for at least one hour at each worksite, which meant that the work scheduled to be completed in the morning could not be completed as planned.

Breach

The Applicant filed an originating application seeking declarations that contravened section 500 of the Fair Work Act 2009 (FW Act) and seeking pecuniary penalties against each respondent.
Section 500 provides that:

A permit holder exercising or seeking to exercise rights by this act must not intentionally hinder or obstruct any person or act improperly.

The Second and Third respondents are officers of the first respondents, and under section 793 of the FW Act, their conduct was also the actions and conduct of the first respondent. As such, under section 550 of the FW Act, the first respondent was aware of and involved in the contraventions of the FW Act committed by the Second and Third respondents.

Decision

His Honour, Vasta J, determined that the respondents have contravened section 500 of the FW Act. The maximum penalty for a contravention of this section is $13,320 for an individual and $66,600 for a body corporate.
Before the orders, the parties agreed as to what the penalties should be. As such, under this agreement, his Honour made the following orders:
- The First respondent to pay a penalty of $204,000 for all of the contraventions;
- The Second respondent is to pay a total of $9,320 for all of the contraventions;
- The Third respondent is to pay a penalty of $12,000 for all of the contraventions.
His Honour also imposed a personal payment order upon the Second Respondent as he has a prior contravention of section 500.