Case name
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors
Known as
Toowoomba Second Range Crossing
Commonwealth Courts Portal reference and link

QUD785/2018

Applicant
Australian Building and Construction Commissioner
Respondent(s)
  • CFMMEU
  • Beau Seiffert
  • Te Aranui Albert
  • Blake Hynes
  • Shaun Desmond
  • Craig Davidson
  • Justin Steele
  • Kurt Pauls
  • Michael Davis
Date filed
State/Territory
QLD
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 Toowoomba Bypass Case) [2021] FCA 1128

Summary of court decision

The Federal Court has penalised the CFMMEU and eight of its officials $121,000 for 36 contraventions of right of entry laws at Queensland’s Toowoomba Second Range Crossing project in 2018.

Between 30 April and 2 May 2018, CFMMEU officials Kurt Pauls, Beau Seiffert, Te Aranui Albert, Blake Hynes, Shaun Desmond, Craig Davidson, Justin Steele and Michael Davis refused to show their federal right of entry permits, entered the construction site and failed to comply with requests to leave the site.

On 30 April 2018, 1 May 2018 and 2 May 2018, a combination of two or more of the officials attended the site and informed site representatives that they wanted to enter the site under section 81(3) of the Work Health and Safety Act 2011 (Qld). Site representatives requested that they produce their entry permits for inspection and told them they were not permitted to enter the site without production of the permits. The officials refused to produce entry permits, subsequently entered and walked around parts of the site and refused requests to leave.

At the time, both Pauls and Davis did not hold a federal entry permit. The remaining six officials were federal entry permits holders and were entitled to enter the site upon production of the permits but refused to produce those permits when requested. 

The entries by the CFMMEU officials in this matter took place shortly after the CFMMEU, Pauls, Seiffert, Albert and Hynes had all previously been restrained from entering the Bruce Highway Caloundra to Sunshine Upgrade construction site in similar circumstances.

In handing down the decision, the Court said:

… I accept that the Union and the individual officials had a genuine and reasonable belief that they were not contravening ss 494(1) or 500 of the FW Act by their conduct in respect of the Project site.

However, I also find that the Union and Messrs Pauls, Seiffert, Albert and Hynes knew that they were risking contravening those provisions, but decided to engage in that conduct regardless of the risk.

… I assess the contraventions of the Union and Messrs Pauls, Seiffert, Albert and Hynes to be somewhat more serious, since they were aware of the risk of contravention that their conduct entailed, having been restrained by order of the Court from engaging in the same or similar conduct in respect of a different site in the first Bruce Highway Caloundra to Sunshine Upgrade Case.

… It is apparent that there was a failure of senior management to instruct the organisers not to engage in similar conduct following the interlocutory injunction granted in the first Bruce Highway Caloundra to Sunshine Upgrade Case on 20 April 2018.

In recognising the CFMMEU’s long history of noncompliance with industrial laws, the Court said:

There are many decisions of this Court which have described the Union’s history of contraventions of industrial laws. It has been said that unlawful conduct is normalised within the Union, that it does not care about the law and penalties imposed upon it and that the culture of contravening conduct is condoned by the Union’s senior leadership. The frequent imposition of heavy penalties has not altered the Unions conduct.

Total Penalties

Total penalties awarded

CFMMEU

$75,000

Kurt Pauls

$15,000

Beau Seiffert

$8,000

Te Aranui Albert

$4,000

Blake Hynes

$8,000

Shaun Desmond

$3,000

Craig Davidson

$2,000

Justin Steele

$3,000

Michael Davis

$3,000

Total

$121,000

Historical content

22 Sep 2021 - CFMMEU and eight officials penalised $121,000 for unlawfully entering Toowoomba Second Range Crossing project