Case name
Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union
Known as
80 Elizabeth Street Hobart
Commonwealth Courts Portal reference and link

TAD15/2020

Applicant
Australian Building and Construction Commissioner
Respondent(s) at time of filing
  • CFMMEU, Richard Hassett, Kevin Harkins
Date filed
State/Territory
TAS
Breach(es) found
Non-compliance with right of entry laws
Status
Finalised
Date finalised
Link to penalty judgment

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case) [2020] FCA 1742

Summary of court decision

On 3 December 2020 the Federal Court penalised the CFMMEU and two of its Tasmanian officials $221,000 after finding they had contravened right of entry laws and intimidated staff at a Hobart construction site in 2019.

The findings of the Court were that:

CFMMEU official Richard Hassett had unlawfully entered the project site at 80 Elizabeth Street on 23 and 28 May 2019. Mr Hassett had not held a valid federal right of entry permit since December 2018.

On 28 May 2019, CFMMEU official Kevin Harkins acted in an improper manner by being loud and intimidating towards the head contractor’s staff when he said:

“Don’t get smart with me a***hole. I’m almost at the end of my career I don’t give a f**ck what happens to me…”

Mr Harkins told Tasmanian Police officers that Mr Hassett was authorised to enter the site despite not having a federal right of entry permit.

The Federal Court in its judgment said of Mr Hassett’s actions:

“Mr Hassett must have known that it was unlawful for him to enter the Project as he did on 23 and 28 May 2019 seeking to exercise entry rights without a permit.

It follows that the contraventions were deliberate and serious. Mr Hassett is also a recidivist.”

The Court went on to state:

“Mr Hassett’s conduct was also flagrant. He knew that he was not permitted to enter the Project for the (health and safety) reasons he gave; he was reminded that he was not so permitted; yet he insisted (among other things) that the idea that he was not allowed on site was “bullshit” (the term he used on 23 May) and that he could (as he put it on 28 May) “do whatever [he] fucking like[d]”.

In referring to Mr Harkin’s conduct the Court said:

Mr Harkins self-evidently acted in an improper way within the meaning of s 500. It is obviously improper for a person holding an entry permit and entering a site under the guise of health and safety concerns to behave as follows:

(a) acting in a loud and intimidating manner toward ..., the Site foreman, when asked what safety equipment was unsafe, and saying to him words to the effect of “don’t get smart with me, arsehole. I’m nearly at the end of my career. I don’t give a fuck about what happens to me, but that bloke over there will be onto you [pointing to Mr Hassett]”;

(b) responding to a request to identify safety breaches with “you don’t fucking pay me, so I’m not going to tell you”; and

(c) responding to [the project manager] asking him (Mr Harkins) to leave by telling [the project manager] to “get fucked”.

In commenting on the CFMMEU the Court said:

“It is, nowadays, a notorious fact that the CFMMEU is a well-resourced, recidivist offender of workplace laws. No point is served here by adding to the plethora of descriptors of its conduct. According to the unchallenged submission of the applicant, the CFMMEU has contravened industrial legislation more than 170 times in the two decades prior to the conduct that gave rise to this proceeding, and as this court has said on many occasions, the union regards paying penalties as part of “doing business”.

The CFMMEU appealed this matter on 30 October 2020 (NTD19/2020).

The CFMMEU discontinued its appeal on 16 March 2021

Total Penalties
Penalties awarded against Penalties awarded
CFMMEU $185,000
Richard Hassett $20,000
Kevin Harkins $16,000
Total $221,000

 

Historical content

Recidivist CFMMEU and officials penalised $221,000 for intimidating behaviour on Hobart project