The Federal Circuit Court in the Australian Capital Territory (ACT) has penalised the CFMMEU $138,000 and six officials a further $63,500 following breaches of right of entry laws across three apartment project sites in Franklin, Harrison and Wright in 2013 and 2014.
According to the Australian Building and Construction Commission (ABCC), over a seven-month period, the CFMMEU officials Dean Hall, Halafihi Kivalu, Johnny Lomax, Jason O’Mara, Zachary Smith and Kenneth Miller entered the various project sites while failing to show federal entry permits as required, failing to comply with occupational health and safety requirements and hindering workers on one or more of the sites and acting improperly.
Mr Hall, who was then secretary of the CFMMEU ACT, was found to have hindered a concrete pour and to have walked onto the site in Wright unaccompanied, where he also scaled scaffolding in breach of site safety rules. Mr Hall was penalised $27,000 for seven contraventions of the Fair Work Act.
Current ACT secretary, Jason O’Mara, was penalised $12,000 for refusing to produce his federal entry permit at one site and failing to comply with an occupational health and safety requirement at another site.
In commenting on Mr O’Mara’s behaviour Judge Neville said:
“As stated many times … bluster and ill-informed comments have no place anywhere. … To profess knowledge, and to act bluntly and forcibly upon it, when it is plainly wrong, is (and in this instance was) wilful and dangerous ignorance. This is especially so when one is in a position of authority, such as Mr O’Mara was. Ill-informed and misconceived ‘might’ is never ‘right’.”
The Federal Circuit Court judgement provided:
The interruptions ranged from ultimately stopping the last stages of a concrete pour, to extended and quite testy engagements between Union officials and management, and to clear flouting of health and safety directions while on site. Properly managed and appropriately informed, in my view, each and every action/conduct by the Union officials involved, which have resulted in the contraventions established, need not have occurred. They could have, and should have, been readily avoided.
The judgement further stated:
Apart from some acknowledgement in the course of the trial that some conduct at the time, in hindsight, was either ill-advised or could have been handled better, for example as noted by Mr Hall in his evidence, there was no expression of contrition by any of the Respondents for their conduct.
In speaking about the involvement of the CFMMEU, Judge Neville said:
“In my view, it is reasonable for the Court to note that the Union is, with little dissent… one of, if not the most forthright and belligerent of Unions in the building industry. It has been around a long time. Its long experience and that of its officials would be difficult to challenge. This only makes it all the more perplexing how regularly around the country it somehow, but consistently misguidedly and ill-informed, thinks that ‘might is right’, especially when so many warnings and cautions have been issued by Courts.”
ABCC Commissioner Stephen McBurney said when permit holders misuse and abuse their right of entry powers in such a flagrant manner as in this case, the ABCC will not hesitate to investigate and litigate.
He noted that there are several concerning features of this case:
- It involved disruption to building work occurring across multiple sites on multiple dates.
- It involved six CFMMEU officials who were all found to have contravened the Fair Work Act. That is the very Act that entrusts important powers in permit holders to enter site.
- There was wilful disregard to and flouting of health and safety directions while on site.
- The involvement of the former and current ACT Secretaries of the CFMMEU is particularly concerning.
- No contrition, no remorse, no apology and no indication of any steps to rectify this conduct and prevent its reoccurrence on the part of the CFMMEU.
“The penalties in this case are significant, both for the individuals and the Union. The ABCC is committed to enforcing the rule of law on building sites in the ACT and throughout Australia. This decision follows the recent decision in the Constitution Place litigation, also in the ACT, that imposed penalties totalling $159,600 on the CFMMEU and its officials,” Mr McBurney said.
“We are committed to assisting victims of unlawful conduct. If you experience any issues of this type on your building site, please contact us. You can be assured the ABCC will fulfil its statutory mandate from the Federal Parliament to be a responsive and impartial regulator and utilise all available enforcement tools to address conduct of this nature.”
CFMMEU – 6 – $138,000
Dean Hall – 7 – $27,000
Halafihi Kivalu – 4 – $13,000
Johnny Lomax – 1 – $2,000
Jason O’Mara – 3 – $12,000
Zachary Smith – 2 – $6,000
Kenneth Miller – 1 – $3,500
Total – 24 – $201,500