The Federal Court has penalised the CFMMEU and eight of its officials $121,000 for 36 contraventions of right of entry laws at Queensland’s Toowoomba Second Range Crossing project in 2018.
Between 30 April and 2 May 2018, CFMMEU officials Kurt Pauls, Beau Seiffert, Te Aranui Albert, Blake Hynes, Shaun Desmond, Craig Davidson, Justin Steele and Michael Davis refused to show their federal right of entry permits, entered the construction site and failed to comply with requests to leave the site.
On 30 April 2018, 1 May 2018 and 2 May 2018, a combination of two or more of the officials attended the site and informed site representatives that they wanted to enter the site under section 81(3) of the Work Health and Safety Act 2011 (Qld). Site representatives requested that they produce their entry permits for inspection and told them they were not permitted to enter the site without production of the permits. The officials refused to produce entry permits, subsequently entered and walked around parts of the site and refused requests to leave.
At the time, both Pauls and Davis did not hold a federal entry permit. The remaining six officials were federal entry permits holders and were entitled to enter the site upon production of the permits but refused to produce those permits when requested.
The entries by the CFMMEU officials in this matter took place shortly after the CFMMEU, Pauls, Seiffert, Albert and Hynes had all previously been restrained from entering the Bruce Highway Caloundra to Sunshine Upgrade construction site in similar circumstances.
In handing down the decision, the Court said:
… I accept that the Union and the individual officials had a genuine and reasonable belief that they were not contravening ss 494(1) or 500 of the FW Act by their conduct in respect of the Project site.
However, I also find that the Union and Messrs Pauls, Seiffert, Albert and Hynes knew that they were risking contravening those provisions, but decided to engage in that conduct regardless of the risk.
… I assess the contraventions of the Union and Messrs Pauls, Seiffert, Albert and Hynes to be somewhat more serious, since they were aware of the risk of contravention that their conduct entailed, having been restrained by order of the Court from engaging in the same or similar conduct in respect of a different site in the first Bruce Highway Caloundra to Sunshine Upgrade Case.
… It is apparent that there was a failure of senior management to instruct the organisers not to engage in similar conduct following the interlocutory injunction granted in the first Bruce Highway Caloundra to Sunshine Upgrade Case on 20 April 2018.
In recognising the CFMMEU’s long history of noncompliance with industrial laws, the Court said:
There are many decisions of this Court which have described the Union’s history of contraventions of industrial laws. It has been said that unlawful conduct is normalised within the Union, that it does not care about the law and penalties imposed upon it and that the culture of contravening conduct is condoned by the Union’s senior leadership. The frequent imposition of heavy penalties has not altered the Unions conduct.
ABCC Commissioner, Stephen McBurney, said:
It is imperative that union officials understand their responsibilities as holders of a Federal entry permit and they adhere to right of entry laws that are designed to strike the appropriate balance between rights of occupiers and permit holders.
Timing is important. The timing of the unlawful entries in this case came just 10 days after the ABCC obtained an injunction from the Federal Court in the Bruce Highway Caloundra to Sunshine Upgrade Case. That injunction was obtained against the CFMMEU, Pauls, Seiffert, Albert, Hynes and other named officials. The Minister for Education and Industrial Relations (State of Queensland) intervened in that proceeding.
In the injunction decision published on 20 April 2018, Justice Collier made the following observations:
“While building and construction sites are potentially dangerous, the interlocutory injunctive relief … sought by the ABCC would simply require CFMMEU officials wishing to attend the Site … to produce an entry permit.
I also note that six of the seven individual respondents have an entry permit – the production by them of those permits is scarcely a hardship to either them or the CFMMEU”
It is in this context that the further contraventions occurred.
The penalties imposed in this case add to a significant tally incurred by the CFMMEU and its representatives. Since 2 December 2016, the courts have imposed $13,490,375 against the CFMMEU and its representatives nationally.
The Queensland branch of the CFMMEU now accounts for over half the Union’s contraventions, with 974 of 1606 contraventions occurring in that State. Total penalties for the CFMMEU and its officials in Queensland since 2 December 2016 amount to $3,253,015.