AIRC outcome
1.On 17 November 2008, in the AIRC, Lacy SDP, made orders against the CFMEU and CMFEU WA officials Michael Buchan and Walter Molina on the basis that they had abused the rights of entry conferred by Part 15 of the Workplace Relations Act 1996 (WR Act).
2.Lacy SDP made orders in relation to the following:
• CFMEU WA organiser Michael Buchan
- Right of entry permit suspended for three months, with a further two-month suspension if there is any further breach of Part 15 of the WR Act by Mr Buchan within the next 12 months.
• CFMEU WA organiser Walter Molina
-Right of entry permit suspended for 2 months, with a further one-month suspension if there is any further breach of Part 15 of the WR Act by Mr Molina within the next 12 months.
• CFMEU WA Assistant Secretary Joe McDonald:
-that CFMEU issue a written direction to Mr McDonald that he not purport to rely on any right of entry under the WR Act in order to facilitate access to construction sites
-no application be made by the CFMEU to the Registrar for the issue of a permit to Mr McDonald for two years
• CFMEU WA
-it is to be a condition of all current permits and any new permits issued in the next two years that the permit holder not 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.
• Former CFMEU WA organiser Mr Doug Heath (who does not hold a current permit):
-no application be made to the Registrar for the issue of a permit to Doug Heath for two months.
3. It was noted that Mr Heath’s consent to these orders did not constitute an admission that he had abused any right conferred by Part 15 of the WR Act.
ABCC application
4. On 14 March 2008 the ABCC applied to the Australian Industrial Relations Commission (AIRC) to:
•revoke or suspend the right of entry permits of three CFMEU WA officials - Walter Molina, Michael Buchan and Doug Heath;
•require the CFMEU WA to take all reasonable steps to ensure that CFMEU WA Assistant Secretary Joe McDonald does not purport to exercise right of entry under the WR Act;
•impose a condition on all permits held by its officials, or issued to its officials in the future, that the permit holder not enter or remain on site in the company of, or in concert with, Mr McDonald; and
•prohibit the CFMEU WA for a period of three years from applying to the Registrar of the AIRC for the issue of a permit to Mr McDonald.
5.The application is made under section 770 of the WR Act for alleged abuse of Part 15 of the WR Act. Part 15 entitles permit holders to enter sites to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches of industrial laws, industrial instruments and OHS laws. The application has been made against the CFMEU, Mr Buchan, Mr Heath and Mr Molina.
6.Mr McDonald does not hold a Federal or State right of entry permit.
7.The grounds for the ABCC’s application are outlined below.
Armadale Shopping Centre - 14 February 2007
8.Mr McDonald and Mr Molina entered the Doric Construction Pty Ltd site at the Armadale Shopping Centre.
9.Mr McDonald allegedly:
•purported to exercise a right under the WR Act when he had no such right;
•behaved in an abusive manner towards the site manager and two ABCC inspectors;
•refused to comply with a reasonable OHS request to wear a safety vest and remained on site after that refusal;
•threatened to disrupt the site;
•untruthfully asserted to police he had a right to be on the site.
10.Mr Molina allegedly abused his rights under Part 15 by:
•attending the site with Mr McDonald who purported to exercise a right under the WR Act when McDonald had no such right;
•acting in concert with Mr McDonald when he engaged in the behaviour outlined above;
•using OHS for an improper purpose – to promote the union by distributing union paraphernalia; and
•failing to produce his entry permit for inspection when requested.
Parliament Place - 22 February 2007
11.Mr McDonald, Mr Buchan and Steve Vissler entered the Pindan Building Company Pty Ltd construction site at Parliament Place, West Perth.
12.Mr Vissler held himself out to be a representative of the union and did not hold a State or Federal right of entry permit.
13.Mr McDonald allegedly:
•purported to exercise rights under the WR Act when he had no such rights;
•deliberately sought to mislead the site owner about his right to enter;
•repeatedly made offensive remarks to a Pindan director and an ABCC inspector; and
•ignored repeated directions to leave the site.
14.Mr Buchan allegedly abused his rights under Part 15 by:
•being on the site with Mr McDonald who purported to exercise rights under the WR Act when Mr McDonald had no such rights;
•acting in concert with Mr McDonald when Mr McDonald engaged in the behaviour outlined above; and
•deliberately seeking to mislead the site owner about his right to enter.
15.Mr Vissler allegedly attended the site with McDonald who purported to exercise rights under the WR Act when Mr McDonald had no such rights.
Q-Con Site - 24 April 2007
16.Mr McDonald, Mr Heath and Mr Buchan entered the Q-Con Pty Ltd Condor Towers site in Perth.
17.Mr McDonald allegedly:
•purported to exercise rights under the WR Act when he had no such rights;
•remained on site after repeated directions from Q-Con management to leave; and
•was abusive towards a Q-Con manager and an two ABCC inspectors.
18.Mr Heath and Mr Buchan allegedly abused their rights under Part 15 by:
•attending the site with Mr McDonald who purported to exercise rights under the WR Act in when Mr McDonald had no such rights; and
•acting together with Mr McDonald when Mr McDonald engaged in the behaviour outlined above; and
•refusing repeated directions to leave the site.
Q-Con site - 27 April 2007
19.Mr Buchan and Mr Heath entered the Q-Con site and purported to exercise OHS rights and the right to recruit members.
20.Mr Buchan allegedly abused his rights under Part 15 by:
•acting in an improper manner by refusing to comply with management’s directions regarding site safety which were reasonable requests relating to OHS while on site;
•refusing to comply with repeated directions from the manager to leave the site when he had no right to remain on site; and
•entering areas beyond the scope of the OHS concerns outlined to the manager, for which he had attended the site to investigate, contrary to reasonable requests by the manager to comply with OHS requirements applicable to those areas and to the site generally.
21.Mr Heath is alleged to have abused his rights under Part 15 by engaging in the same conduct as Mr Buchan.