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Australian Building and Construction Commissioner v Hanlon (No 2) [2021] FCCA 787 (23 April 2021)
Two former CFMMEU NSW senior officials have been penalised a total of $9,180 following a judgment in the Federal Circuit Court.
The Court found former State Secretary Brian Parker (who is no longer with the Union) and former Assistant State Secretary Rebel Hanlon unlawfully entered the $65 million Ponds School project site in Sydney’s north-west in August 2014.
Both Mr Parker and Mr Hanlon were found to have acted in an improper manner in contravention of section 500 of the Fair Work Act 2009.
The Court found that both officials failed to provide the required 24 hours’ notice for entry and refused to show their federal right of entry permits. Mr Parker said he did not “care about the paperwork”.
The Court found Mr Parker acted aggressively towards the project manager. Mr Parker directed abusive language to the project manager when he told him if he did not round up the workers, he would do it himself, saying:
“You will do what I f**king say” and “don’t f**k me around.”
In an earlier decision on liability handed down on 16 December 2020, Judge Cameron found that:
“Mr Parker’s contemptuous disdain for statutory preconditions to lawful entry on others’ premises, manifested by the way he spoke to [the project manager] was…improper conduct in … that it was a breach of the standards of conduct that reasonable persons with knowledge of the relevant circumstances and of Mr Parker’s duties, powers and authority, would expect of a person in Mr Parker’s position.”
In the penalty decision, Judge Cameron said:
“Both Mr Parker and Mr Hanlon were experienced trade union officials. The right of entry process is not difficult to understand and should have been engaged before they sought entry to the Ponds site. Further, knowing that they had been refused entry, Messrs Hanlon and Parker had clearly been placed on notice that they had no right to enter or remain on the premises for the purposes of pursuing a meeting which [the project manager] had refused to approve. Finally, in Mr Parker’s case, the contravening conduct was aggravated by his offensive and aggressive manner towards [the project manager].”
Regarding Mr Hanlon’s conduct, the Court said:
“Mr Hanlon’s limited right of entry did not entitle him to act as he did on 11 August 2014 such that he contravened the FW Act. That conduct was an abuse of his limited statutory right of entry. That right of entry serves an important function in the protection of workers’ rights and working conditions and its misuse runs the risk of bringing it into disrepute and to lessening its support in the community.
“Mr Hanlon has not expressed any remorse or contrition and he vigorously defended this proceeding.”
In relation to Mr Parker’s conduct, the Court said:
“Mr Parker was a very senior official with many years’ experience in industrial relations. Lest others in positions similar to Mr Parker’s misunderstand that such conduct will not attract a sanction, the penalty to be imposed on Mr Parker will reflect the Court’s disapproval of his improper conduct, including the aggressive way in which he, a senior and experienced union official, spoke to [the project manager].
“As with Mr Hanlon, Mr Parker has not expressed any remorse or contrition and he vigorously defended this proceeding.”
ABCC Commissioner Stephen McBurney said despite the unlawful actions occurring in 2014, very little had changed in terms of the Union and its officials’ disregard for Australia’s workplace laws.
“The ABCC regulates right of entry on building and construction sites. The law requires the privileges afforded to permit holders to be balanced against the rights of occupiers. This case illustrates a clear and flagrant example of two union officials abusing the rights afforded to them.” Mr McBurney said.
“Mr Hanlon and Mr Parker deliberately engaged in the unlawful behaviour despite being aware of the limitations on their rights as federal right of entry permit holders.
“The object of the Fair Work Act is to provide workplace relations laws that are fair to working Australians. The ABCC will jealously guard the protections set out in the Fair Work Act.”
“If anyone experiences abuse, threats, intimidation or unlawful conduct on building and construction sites, you can count on the ABCC to investigate, and where appropriate, litigate against contraveners.”
Note: This matter was originally filed by Fair Work Building and Construction (FWBC) in 2015. On 2 December 2016, FWBC became the ABCC. On 23 November 2021 the Full Court of the Federal Court dismissed the CFMMEU and Mr Hanlon's appeal.
| Penalties imposed | |
| Brian Parker | $6,120 |
| Rebel Hanlon | $3,060 |
| Total | $9,180 |