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Radisich v Buchan, Heath, Molina and CFMEU


Applicant:
ABCC Inspector Jeff Radisich 
Respondent(s):
Michael Buchan, Doug Heath, Walter Molina and CFMEU 
Date filed:
14 March 2008 
Outcome:

On 17 November 2008 the AIRC ordered by consent:

  • The CFMEU give a written direction to Mr Joe McDonald that he must not purport to rely on any right of entry under the Workplace Relations Act 1996 (WR Act) in order to facilitate access to construction sites. Mr McDonald does not hold a right of entry permit under the Act.
  • The CFMEU will not apply to the Registrar for the issue of a permit to Mr McDonald for a period of two years.
  • The following condition be imposed on all current permits and all permits issued over the next two years in respect of the CFMEU WA branch: the permit holder is not permitted to enter or remain on construction sites in the company of, or in concert with, Mr McDonald except where Mr McDonald has been invited in advance by an owner.
  • The permit held by Mr Michael Buchan be suspended for three months. A further two month suspension to apply to a permit held by Mr Buchan if he breaches any provision of Part 15 of the WR Act during the next 12 months.
  • The permit held by Mr Walter Molina be suspended for two months. A further one month suspension apply to a permit held by Mr Molina if he breaches any provision of Part 15 of the WR Act during the next 12 months.

The CFMEU will not apply to the Registrar for the issue of a permit to Mr Doug Heath for a period of two months.
Mr Heath’s consent to the order does not constitute any admission that he abused any right conferred by Part 15 of the WR Act.
Background:

On 14 March 2008 the ABCC applied to the Australian Industrial Relations Commission to:

  • revoke or suspend the Federal right of entry permits of three CFMEU organisers - Walter Molina, Michael Buchan and Doug Heath
  • require the CFMEU to take all reasonable steps to ensure that CFMEU WA Assistant Secretary Joe McDonald does not purport to exercise right of entry under the Workplace Relations Act 1996 (WR Act)
  • impose a condition on all permits that are held by its organisers, or issued to its organisers in the future, that the permit holder not enter or remain on site in the company of, or in concert with, Mr McDonald
  • prevent the Union from applying to the AIRC for the issue of a permit to Mr McDonald for three years.

The application was made under s.770 of the WR Act for alleged abuse of Part 15 of the WR Act. Part 15 entitles permit holders to enter a site to hold discussions with actual and potential members or to investigate suspected breaches of industrial laws, industrial instruments and OHS laws.

The ABCC alleged that Mr Molina abused the right of entry system by his conduct at the Armadale Shopping Centre site, which he attended with Mr McDonald, on 14 February 2007.

The ABCC alleged Mr Buchan abused the right of entry system by his conduct at the Parliament Place site, which he attended with Mr McDonald and another CFMEU official, on 22 February 2007.

The ABCC alleged Mr Buchan and Mr Heath abused the right of entry system by their conduct at Q-Con's Condor Towers site on 24 and 27 April 2007. Mr McDonald was also in attendance on 24 April 2007.

Subsequent Matter

The application was finalised by consent on 17 November 2008.

On 16 March 2009 the ABCC filed an appeal pursuant to s.147 of the Workplace Relations Act 1996 against:

a) a decision made by Deputy Registrar Jenkins of the AIRC on 25 February 2009, to issue federal right of entry permit to
Michael Buchan, an official of the CFMEUW, without imposing a the limiting conditions ordered by SDP Lacy on 18 November 2008.

b) further or in the alternative, the refusal or failure of Deputy Registrar Jenkins to make a decision under s.741 of the WR Act to impose such a condition upon the Permit.

The ABCC's appeal was successful. On 21 May 2009 SDP Lacy ordered that Mr Buchan's right of entry permit be remitted back to the Registrar for the insertion of the condition that restricts Mr Buchan from using his entry permit in the company of Joe McDonald. Mr Buchan was also ordered to surrender his current Construction, Forestry, Mining and Energy Union of Workers entry permit until such time as the Registrar imposes the requisite condition.