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The ABCC commenced proceedings against the CFMEU and its (now former) SA organiser Mark Gava alleging he purported to exercise a right of entry onto the Flinders Medical Centre Transforming Health project site in December 2016 while knowing he did not have a valid right of entry permit.
In a penalty decision handed down on 2 October 2018, the Federal Court found Mr Gava contravened s503 (1) of the Fair Work Act 2009 by unlawfully misrepresenting his rights to access the project and meet with workers while not having a valid right of entry permit.
It was found the following exchange took place: [Site Manager]:
“[A]re you aware your right of entry permit has expired”?
Gava: “No I am not aware of that. I didn’t know that, our office handles that, I’d be surprised if our girls didn’t know that”.
[Site Manager]: “Surely you must know”.
Gava: “No”.
[Site Manager]: [Y]ou’ve been reported for a breach already for entering an entry notice without a permit. I am going to have to report you for being here.”
The ABCC alleged the conversation was in stark contrast to later admissions made by Mr Gava on oath in a Fair Work Commission hearing that he knowingly entered the site without a permit.
In awarding penalties totalling $74,000 against the CFMEU and Mr Gava, Justice White said:
“The CFMMEU's record of contraventions of industrial legislation is appalling. Since 2000, it has been found to have contravened industrial legislation on more than 140 separate occasions;…”
“On any view, this is a deplorable record of contraventions. It must be taken into account in assessing penalties in the present case.”
| Penalties awarded against | Penalties awarded |
| CFMMEU | $68,000 |
| Mark Gava |
$6,000 |
| Total | $74,000 |
$74,000
Media release - ABCC launches legal action against CFMEU alleging right of entry breaches
Media release - Misrepresentation comes at a cost for union official
Australian Building and Construction Commissioner v Mark Gava & Anor