08 July 2015CFMEU may be banned from paying its officials’ fines
The Federal Court has suggested penalties made against CFMEU officials should not be paid by the CFMEU. “If the primary purpose of imposing a penalty is deterrence, there may be little deterrence if a penalty imposed upon a union official is simply reimbursed by his union,” Justice Flick said.
Flick J was handing down a liability judgment in an FWBC case against the CFMEU and two of its officials, one of whom told a project manager he was crocodile hunter Steve Irwin when asked to provide his details. The Court found the CFMEU, and officials Chad Anthony Bragdon and Anthony Kong did break right of entry laws at a Sydney construction site at Sydney Domestic Airport in June 2013.
“Whatever may have been the reasons why Messrs Bragdon and Kong behaved in the manner they did, their conduct brought no credit to themselves or to the Union that they represent,” Flick J said in his decision. “Once on site, it has been further concluded that they purported to exercise powers which they knew they did not possess. They behaved in a manner which was abusive and misleading. Their conduct can only be described as contemptuous of the limits to their power and the people on site with whom they were dealing.”
Mr Kong and Mr Bragdon disobeyed safety laws on the site. The Court found that Mr Kong and Mr Bragdon entered the site without personal protective equipment, which was a safety requirement. Mr Kong and Bragdon claimed they were invited onto the site, but the Court rejected this claim.
Once on site, they said to workers involved in a concrete pour: “Get off the deck, we’re stopping the pour, this is unsafe. This site is shut”. When supervisors and foremen asked why they should stop the pour, Mr Kong replied: “They’re a pack of murderers (the head contractor), get off the deck, it’s not safe.” In his liability judgment, Flick J said one witness “gave an account of Messrs Bragdon and Kong ‘barg[ing] onto the site’ and ‘screaming at us that the site was unsafe and we had to stop pouring concrete’.”
They claimed that evacuation stairs to the deck were not wide enough. The safety committee subsequently met and determined they were satisfied the area Mr Bragdon and Mr Kong had raised concerns about was safe.
The project manager asked the two officials for their right of entry permits. Mr Bragdon replied: “Yeah mate, we’ll give them to you later.” The project manager responded: “Can I at least get your names?” Mr Kong replied: “Steve Irwin.” The project manager asked: “What as in the crocodile hunter?” Mr Kong replied: “Yeah, that’s it.”
During cross examination, Mr Kong chuckled as he agreed that he misidentified himself as Steve Irwin. Flick J said “Mr Kong, it may be noted, accepted that his response to one question put to him on site was that of a “smart-arse”. The same description can be ascribed to the manner in which he gave some of his evidence during the hearing.”
The project manager made repeated requests to see their right of entry permits. He received responses including “I’ll give it to you after the safety committee meeting.” “I’ll send them this afternoon.” “You’ll get mine when you get his.” “I will show you later” and “I’ll email it to you.” The court described their failure to produce their entry permits as “inexplicable”.
According to court documents, the site’s safety co-ordinator said that Mr Bragdon and Mr Kong “became abusive and started to use foul language.” He said that Mr Bragdon said “No we’re not f*cking leaving. You’re a pack of murderers, we’re gonna get you.” During cross examination, the site manager said he believed Mr Kong and Mr Bragdon were “trying to interrupt what we were…trying to do on that day…” and that “the general level of aggression” was “uncalled for”. On the day of the incident, the site manager said: “What’s going on, what’s the story? This is a stitch up.”
Penalties in the case are still to be handed down. A directions hearing is scheduled for 10 July to set a timetable for parties to make submissions.CFMEU may be banned from payings its officials' fines.pdf