The Federal Magistrates Court in Sydney has imposed penalties totalling $12,500 on CFMEU official Thomas Mitchell, the CFMEU and the CFMEU NSW, and Mr Mitchell has undertaken not to apply for a right of entry permit for 12 months.
While exercising his rights as a permit holder on a building site in Dee Why, Sydney on 17 June 2010, Mr Mitchell was accompanied by two management employees of Cavill Properties Pty Ltd.
When asked a question by one of the management employees, Mr Mitchell replied with words to the effect of “Who the f*** are you to ask me a question? Stand there and take your f****** notes and shut the f*** up.” Mr Mitchell used similarly aggressive language throughout his visit.
“The situation that occurred would not be accepted in a public place or any other workplace, it will not be accepted in the building and construction industry,” said Australian Building and Construction Commissioner Leigh Johns.
“Mr Mitchell chose to ignore his responsibilities as a permit holder. As a result, he will now be without a right of entry permit for the next 12 months and is unable to enter a site for the purposes of the FW Act, unless invited.
“At the end of that 12 months, Mr Mitchell will have spent approximately 15 months without a permit, as Fair Work Australia suspended his permit for three months in May 2011 following a separate ABCC proceeding.
“The repeated sanctions demonstrate that compliance with right of entry provisions is not voluntary, and those who contravene the law will be held accountable.”
In handing down his decision, Raphael FM observed:
“... whilst the general population would not be surprised to hear that swearing occurs in discussions between union officials and building companies on a building site, this does not prevent it from constituting acting in an improper manner. ... whilst the legislation gives a permit holder important rights for the purposes of ensuring that workplace safety is protected those rights come with responsibilities. The ability to enter without notice upon another’s premises is a privilege denied to most. It is one which should be exercised with due acknowledgement of the rights of the occupier. This requires restraint, but not lack of diligence, and good manners. There is nothing to be gained by aggression or intemperance, no worker’s safety is enhanced in this manner”.
ABCC v Thomas Mitchell & Ors [2011] FMCA 622, Paragraph 9
The Court accepted the penalty submission and statement of agreed facts provided by the parties, imposing penalties of $5000 on the CFMEU, $5000 on the CFMEU NSW, and $2500 on Mr Mitchell.