CFMMEU contravenes the Fair Work Act

Nov 2019 | Construction & Engineering Workplace Advisory Work Health & Safety

The Australian Building and Construction Commissioner has recently been successful in obtaining declaratory orders and injunctive relief from the Federal Court in relation to the conduct of the CFMMEU and seven of its officials which contravened provisions of the Fair Work Act 2009 (Cth). A hearing on pecuniary penalties will follow shortly.

The contraventions arose from the repeated entry by those officials onto a construction site where a section of the Bruce Highway was being upgraded. The officials sought to enter the site pursuant to s 81(3) of the Work Health and Safety Act 2011 (Qld) (WHS Act), which permits a representative of a party to enter a workplace for the purpose of attending discussions with a view to resolving a work health and safety issue. Upon entering the worksite, the officials maintained they were not obliged to produce entry permits, refused multiple requests to leave the site, and failed to comply with site WHS requirements. Six of the seven officials were also arrested (some on several occasions) for trespassing.

The occupier of the construction site faced additional pressure from Workplace Health and Safety Queensland (WHSQ) to allow the entries, after a WHSQ inspector issued improvement notices on the basis of the inspector’s belief that the refusal to grant the CFMMEU officials access to the site was in breach of the WHS Act.

The Minister for Education and Minister for Industrial Relations for the State of Queensland intervened in the proceeding, and supported the position of the CFMMEU that the application should be dismissed on the basis that the CFMMEU and its officials were not exercising any ‘right’ of entry at the relevant times. The Court disagreed, and found that such a ‘right’ was exercised and the CFMMEU officials were therefore obliged to produce entry permits upon exercising a right of entry pursuant to s 81(3) of the WHS Act. The Court further found that the conduct of the CFMMEU officials constituted a breach of the standards of conduct that would be expected of reasonable persons in their position with knowledge of the duties, powers and authority of the position.

The decision reinforces the rights of businesses to insist on production of entry permits for purported exercises of union rights of entry. It further recognises the right of businesses to require union officials to comply with any WHS requirements which apply in the workplace.

.....

This article may provide CPD/CLE/CIP points through your relevant industry organisation.