Lessons learnt on right of entry
A recent Federal Court decision handing down significant penalties for contraventions of right of entry laws has a number of implications for building industry participants.
The outcome of this case also highlights some important lessons for building industry participants:
- Do your homework – be aware of the agreement on site
- Repeat offences put you at a higher risk
- The ABCC will intervene.
Case background
In the Queensland case John Holland Pty Ltd v CFMEU, CEPU, AMWU, AWU and Ors, the CFMEU, AMWU and CEPU were found to have misrepresented their right to enter the Abbott Point Coal Terminal Expansion Project site and hindered and obstructed persons on that site.
Justice Greenwood ordered the following penalties to be paid to the principal contractor John Holland Pty Ltd:
- $40,100 to be paid by the CFMEU
- $39,100 to be paid by the AMWU
- $15,000 to be paid by the CEPU.
Further information on this case is available from the Interventions and Submissions section of the ABCC website.
Lesson 1: Do your homework – be aware of the agreement on site
Work performed by John Holland employees at the Abbot Point site is covered by a greenfields agreement with the AWU. This means that under the Workplace Relations Act 1996 (WR Act) as it applied at the time, the CFMEU, AMWU and CEPU had no right of entry to the site.
The right of the three unions to enter the site was first rejected by John Holland in November 2008 and was followed by several letters of correspondence reiterating this fact. The unions, however, persisted with exercising their perceived right of entry in March and April 2009 without taking steps to determine whether or not their entry was authorised by legislation.
In his decision on penalty, Justice Greenwood made it clear that the unions had the opportunity to pursue other avenues asserting their right of entry which had been challenged by John Holland. His Honour said that such avenues could have included discussing the issue directly with John Holland or seeking a declaration through the courts. That they chose not to do this was reflected in the penalties handed down.
It is important for all building industry participants to be aware of the agreements that apply on site. Doing your homework can save you from problems in the future.
Lesson 2: Repeat offences put you at a higher risk
When considering the penalties to be imposed, Justice Greenwood made a number of key points:
- Previous contraventions of similar provisions in legislation are relevant. The CFMEU and CFMEU (Qld) had previously been found to have made false and misleading statements to employees of a company about their obligation to join a union. While this does not involve right of entry breaches, it is misleading conduct. The similar features of this previous contravention would be relevant when considering the new penalties against the CFMEU.
- The previous conduct of an organiser was relevant in this case. AMWU organiser Terry Bradley had been involved in the 2001 Skilled Engineering ‘run through’ involving assembly and unlawful forced entry to premises in his capacity as an official of the AMWU. According to the Federal Court, this offence showed a ‘previous willingness on Mr Bradley’s part as a Union official to unlawfully enter premises to pursue perceived workplace grievances’.
- Contraventions by a federally registered union ought not to be disregarded if the previous contraventions have occurred in other divisions or branches where there is a pattern of misconduct.
These factors all contributed to the size of the penalties imposed by the court on the three unions. The decision in this case makes it clear that that the court may consider previous contraventions of workplace laws when determining penalties for further breaches.
Information on right of entry under the Fair Work Act 2009 (FW Act) is available in the article ‘Right of entry – the same steps on a new path’ below.
Lesson 3: The ABCC will intervene
The ABC Commissioner has a right to intervene in court cases that arise under workplace laws and involve building industry participants or building and construction work. The ABC Commissioner will intervene in such cases when he believes it is in the public interest to do so.
The ABC Commissioner intervened in this case and presented submissions to the court on the question of penalties and costs. The Commissioner submitted that the court consider penalties handed down in similar cases and previous contraventions by the respondents when deciding penalties in this proceeding. Mr Bradley’s involvement in the 2001 ‘run through’ and his Victorian County Court conviction in relation to it was referred to in the ABCC’s submissions.
See the ABCC fact sheet Power to Intervene in Cases for more detail on the ABC Commissioner’s power to intervene.
Further Information:
ABCC website: John Holland Pty Ltd v CFMEU, CEPU, AMWU, AWU, Ong and Others
Regional NSW and QLD get the red carpet treatment
ABCC inspectors are hitting the country road and making themselves available to building industry participants around regional New South Wales and Queensland from September to November 2009. Nothing beats a face-to-face conversation about your specific issues. This is a great opportunity to get free advice from the people who know.
Advisers will be on-hand to meet with industry participants and offer information about workplace relations legislation, the National Code and sham contracting. Educational materials such as information packs, fact sheets, posters and pocket-sized guides will be available.
A list of the regions to be visited is provided in the tables below. ABCC advisers will be making site visits to meet with head contractors, subcontractors or employees and discuss issues affecting workplaces.
Building industry participants can arrange a personal meeting or presentation with ABCC advisers by calling the ABCC hotline on 1800 003 338.
This is an invaluable opportunity for building industry participants to obtain situation-specific advice and information from the ABCC.
Members of the Master Builders Association and the Master Plumbers Association will be able to meet ABCC advisers at trade shows being held in many of the regions.
For further information on the trade shows contact your relevant industry organisation.
Right of entry – the same steps on a new path
The ever popular ‘3 Step Guide to Right of Entry’ poster and pocket-size card are back!
The guides have been updated to reflect the FW Act and summarise the relevant sections into three steps:
- Valid reasons for union officials to enter a building site.
- Legal requirements of union officials to gain access to the site.
- Legal requirements of site managers when right of entry has been granted.
The FW Act introduces some minor changes to right of entry, but primarily retains the same requirements that were in the WR ACT. An important change in the legislation involves the rights of union officials to access the records of employees who are not union members.
Under the FW Act it is possible for permit holders to inspect non-union member records. However, this is only allowed if the employee provides their consent in writing or if Fair Work Australia orders access after an application is made.
Related Documents:
To view the ‘3 Step Guide to Right of Entry’ poster and pocket-size card online go to the ABCC website.
To have a hard copy of the poster or pocket-size card posted to you please email enquiry@abcc.gov.au.
Court round up
Penalties for unlawful conduct at Maryvale Pulp Mill total $105,000
On 28 August 2009 the Federal Court in Melbourne imposed penalties totalling $30,000 on the AMWU and organiser Steven Dodd for unlawfully threatening a building contractor at the Maryvale Pulp Mill project in Victoria. The decision brings the total penalty amount imposed for contraventions of the BCII Act at the project to $105,000.
Mr Dodd admitted he threatened to organise industrial action with intent to pressure the contractor to make an AMWU industrial agreement in February 2008.
On 25 August 2009 the Federal Magistrates Court ruled that penalties of $75,000 be imposed on the AWU, CEPU, AMWU and three union representatives for unlawful industrial action at the Maryvale Pulp Mill expansion project.
The unions and their representatives admitted they contravened s.38 of the BCII Act by encouraging groups numbering between 17 and 433 workers to unlawfully strike on multiple occasions between July 2007 and February 2008.
In all five proceedings penalties were handed down as a result of a settlement between the ABCC and the respondents. The terms of settlement require that the three union representatives involved in the contraventions participate in an education program about workplace relations laws in the building and construction industry.
Related Documents:
ABCC media statement: Penalties for breaches of BCII Act at Maryvale Pulp Mill total $105,000
ABCC media statement: Disruptions at Maryvale Pulp Mill result in $75,000
Penalties for unlawful industrial action at Yarra Arts site
On 29 July 2009 the Federal Court imposed penalties of $10,000 on the CFMEU and $5000 on Mr Noel Washington after they admitted to engaging in unlawful industrial action.
In reaching a settlement with the ABCC, the CFMEU and Mr Washington admitted to contravening s.38 of the BCII Act in October 2006 at the Melbourne Recital Hall and the Melbourne Theatre Company construction project at Southbank, Victoria.
In an agreed statement of facts the parties submitted that Mr Washington and the CFMEU held an unauthorised stop-work meeting with four employees of a crane contractor on the Bovis Lend Lease project. After the meeting Mr Washington placed a work-ban on crane installation work at the site.
Related Documents:
ABCC media statement: CFMEU and Washington admit unlawful industrial action
ABCC media backgrounder: Cruse v CFMEU and Washington
Alleged unlawful industrial action in South Australia
In a new proceeding before the Federal Magistrates Court in Adelaide, the ABCC alleges that the CFMEU and its official Justin Feehan engaged in unlawful industrial action in July 2008 at a construction site in Hindmarsh Square, Adelaide.
Directions were made by the court on 11 August 2009. A further directions hearing has been set down for 14 September 2009.
Related Documents:
ABCC media backgrounder: Mathers v CFMEU and Feehan
ABCC alleges 92 contraventions in West Gate Strengthening Project proceeding
On 7 August 2009 the ABCC filed a Statement of Claim in the Federal Court alleging 92 contraventions of the BCII Act relating to an industrial dispute at the West Gate Bridge in Melbourne.
The proceeding was filed on 6 February 2009 when urgent interim injunctive relief was sought to restrain the AMWU, CFMEU and their officials from hindering access to the site.
The ABCC alleges that the AMWU, CFMEU and four individual respondents contravened provisions of the BCII Act relating to unlawful industrial action and coercion.
A further directions hearing is scheduled for 16 October 2009. The matter is expected to be heard in the Federal Court in Melbourne in March 2010.
Related Documents:
ABCC media backgrounder: Williams v AMWU, CFMEU, Powell, Mavromatis, Stephenson and Pizarro