Fair Work Commission suspends senior Tasmanian CFMMEU official’s entry permit for three months following penalties

Australian Building and Construction Commission

On 5 August 2021 the Fair Work Commission suspended for three months the federal entry permit of Tasmanian CFMMEU official Kevin

HarkinsThe suspension means Mr Harkins is not authorised to exercise entry rights for three months in accordance with the Fair Work Act 2009.

Mr Harkins is required to return the suspended permit to the Fair Work Commission within seven days. At the end of the suspension period, the permit will be returned to Mr Harkins upon application by the CFMMEU or Mr Harkins.

The Fair Work Commission’s decision follows the Federal Court’s judgment in the Elizabeth Street Hobart Case, delivered on 3 December 2020, in which Mr Harkins was penalised $16,000 for acting in an improper manner and being involved in contraventions engaged in by Richie Hassett, another CFMMEU official.

Mr Harkins told Tasmanian Police officers Mr Hassett was authorised to enter the site despite knowing he did not have a federal right of entry permit. The Fair Work Commission found:

As a permit holder who had undertaken relevant training, Mr Harkins ought reasonably to have known that a person cannot exercise a State or Territory OHS right unless the person also holds a valid right of entry permit issued under the FW Act.

The ABCC intervened in the Fair Work Commission’s proceedings arguing Mr Harkins’ entry permit be suspended.

In delivering its decision, the Fair Work Commission found:

… there is an element in the contravening conduct which suggests that Mr Harkins acted in a cavalier manner not concerned about the consequences of his conduct. It is to be remembered that part of Mr Harkins’ contravening conduct involves him saying in a loud and intimidating manner toward the Site foreman “I’m nearly at the end of my career. I don’t give a f**k about what happens to me”.

In referring to Mr Harkin’s conduct, the Fair Work Commission noted the Federal Court had found:

Mr Harkins self-evidently acted in an improper way within the meaning of s 500. It is obviously improper for a person holding an entry permit and entering a site under the guise of health and safety concerns to behave as follows:

(a) acting in a loud and intimidating manner toward …, the Site foreman, when asked what safety equipment was unsafe, and saying to him words to the effect of “don’t get smart with me, a***hole. I’m nearly at the end of my career. I don’t give a f**k about what happens to me, but that bloke over there will be onto you”;

(b) responding to a request to identify safety breaches with “you don’t f***ing pay me, so I’m not going to tell you”; and

(c) responding to [the project manager] asking him (Mr Harkins) to leave by telling [the project manager] to “get f***ed”.

In deciding to suspend Mr Harkins federal right of entry permit, Fair Work Deputy President Gostencnik said:

“Overall considering each of the matters raised by the CFMMEU and Mr Harkins, I am not persuaded for the reasons given that the nature and gravity of the contravening conduct weighs in favour of a conclusion that suspension or revocation would be harsh or unreasonable. None of the matters raised suggest that the Court’s conclusions as to the gravity of the conduct should be discounted.”

The Fair Work Commission also banned issuing any further entry permit to Mr Harkins for a period of three months commencing 5 August 2021.

If Mr Harkins attempts to exercise right of entry on any building site during the period of the suspension, you are advised to immediately contact the ABCC.

/Public Release. This material comes from the originating organization and may be of a point-in-time nature, edited for clarity, style and length.