- CFMMEU, James Fissenden
- Adverse action
The Federal Court has today imposed penalties totalling $44,000 against the CFMMEU and its delegate James Fissenden for coercing a worker to join the union.
The Court also ordered the CFMMEU to repay $625.50 in membership fees paid on behalf of the worker by his employer.
The Court found Mr Fissenden threatened to prevent a shopfitting company from working at the Sunshine Plaza Shopping Centre site in Maroochydore unless one of its workers joined the CFMMEU.
At the time of the incident the worker was subjected to abusive behaviour and a series of offensive comments by Mr Fissenden, which was recorded in two videos.
Mr Fissenden had a conversation with one of the shopfitters to the following effect:
Mr Fissenden: I don’t have a record of you as a member.
Shopfitter: Yes, you signed me up. When I was working on stage one.
Mr Fissenden: I remember you now. You were that cheeky f***ing little c**t who refused to be part of the union. You're a grubby little c**t. I remember tearing your papers up.
Mr Fissenden then continued the conversation with the director of the shopfitting company to the effect:
Mr Fissenden: You're not working Sunday. I'm not going to approve you to work Sunday until this grubby little c**t joins the union.
Mr Fissenden: Unless we get $625.20, I am going down to me office now, in the next 15 minutes, you will not be working on Sunday.
The shopfitting company paid the $625.20 CFMMEU membership fee in response to Mr Fissenden’s threat.
The Court found the conduct of the CFMMEU and its delegate Mr Fissenden contravened the coercion and adverse action provisions of the Fair Work Act.
The CFMMEU was penalised $40,000 and Mr Fissenden $4,000, and the CFMMEU was ordered to pay $625.50 to the shopfitting company.
The Federal Court judgment delivered by Justice Rangiah observed that:
“The parties all accept that the conduct of the respondents was serious. The Commissioner characterises it as, “a repudiation of the principle of freedom of association, which is an object of the FW Act”. The conduct of Mr Fissenden, and through him the Union, was described by counsel for the Commissioner as, “aggressive, intimidatory (sic), loud, abusive. In effect, plain and pure industrial standover tactics”.
“Two videos recording the contravening conduct were provided to the Court. The videos show that Mr Fissenden was loud and abusive, and used offensive language to describe (the worker). The contravening conduct was engaged in openly and in front of others at the Sunshine Plaza Site.
“Mr Fissenden’s conduct involved a threat to the incomes and revenues of (the worker) and (the shopfitting company).”
In addressing the CFMMEU’s prior contraventions Justice Rangiah noted:
“There is no evidence of contrition by Mr Fissenden or the Union.
“It is true that the Union has an extensive history of contraventions of industrial laws, including s 348 of the FWA. The Commissioner provided the Court with a schedule demonstrating that there have been 168 separate cases in which this Court or the Federal Circuit Court of Australia have imposed civil penalties upon the Union for contraventions of the FWA, the Workplace Relations Act 1996 (Cth), the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) and the Building and Construction Industry Improvement Act 2005 (Cth). Most relevantly, 19 of those cases involved the Union engaging in similar conduct to that engaged in by Mr Fissenden, namely the prosecution of a “no ticket–no start” policy at construction sites.”
ABCC Commissioner Stephen McBurney said:
“The shopfitter in this case turned up to his workplace to undertake work. He was reliant on this work to generate an income. He was trained and qualified to do the work. Mr Fissenden took matters into his own hands, subjected the worker to unacceptable personal abuse and intimidation. This was extended to the director of the shopfitting company who was coerced into paying the union fees for the worker.
“As noted by the Court, this type of behaviour is commonplace in the building and construction industry, with 19 previous cases involving similar conduct. Equally concerning is the distinct absence of contrition or remorse. There has been no apology for the personal abuse, no statement of remorse or regret from the Union or its delegate, no undertaking to the Court to address the behaviour, no indication of remedial steps or retraining for the delegate, and no recourse to anger management to address his offensive conduct.
“The Court further noted the 168 separate cases for which the CFMMEU has had civil penalties imposed for contraventions of designated building laws. Currently the CFMMEU is a respondent to a court proceeding brought by the ABCC in every State and Territory in Australia. While this business model remains, the ABCC will address the conduct at every turn and call out behaviour that puts the safety, reputation and livelihood of workers at risk.”
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