Case name
Director of the Fair Work Building Industry Inspectorate v Michael McDermott & anor
Known as
St Mark’s Project
Commonwealth Courts Portal reference and link

SAD61/2015

Applicant

Australian Building and Construction Commissioner

Respondent(s) at time of filing

CFMEU, Michael McDermott

Date filed
31 March 2015
State/Territory
SA
Breach(es) found
Non-compliance with right of entry laws
Status
Finalised
Link to liability and penalty judgment

Director, Fair Work Building Industry Inspectorate v Bolton (No 2) [2016] FCA 817

Link to Federal Court appeal judgment

Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] FCA 1475

Link to High Court appeal judgment

Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41 (28 October 2016)

Summary of court decision

On 19 July 2016 the Federal Court handed down penalties totalling $24,000 on the respondents. At the same time, the Federal Court handed down its decision to refuse the CFMEU’s interlocutory application to withdraw its admissions in relation to liability under s.793 of the Fair Work Act.

On 28 October 2016 the High Court dismissed applications filed by the respondents seeking review of the Federal Court decision to refuse the interlocutory application to allow the CFMEU to withdraw its admissions.

On 12 December 2016 the Respondents filed an application in the Federal Court seeking leave out of time to appeal against the first instance decision of the Court. On 8 December 2016, the Federal Court refused leave to appeal.

FWBC launched proceedings against the CFMEU and SA Assistant Michael McDermott in the Federal Court of Australia for breaching right of entry provisions.

In its statement of claim, FWBC alleged that on 4 June 2014:

Mr McDermott entered the St Marks College site where he asked the Safety Supervisor “Who is on site today?” and “What companies are they from?”. The Safety Supervisor responded that the concreters and steel fixers were on site and that Mr McDermott already knew which companies they were from.

Mr McDermott then said words to the effect “I want to have a chat to the boys”. When told by the Safety Supervisor that he could not do that without providing proper documentation, Mr McDermott responded “You know I’m not going to do that”.

The Safety Supervisor advised that if Mr McDermott did not leave the site he would call the police, to which Mr McDermott responded “Are you going to be one of those d**kheads are you? Call them then, they are only going to escort me off if I’m still here”.

Mr McDermott then proceeded to the site lunch shed where he asked several project workers “How many of you are in the union?” and proceeded to discuss union membership and benefits.

During his address to the project workers, Mr McDermott made two requests to the Safety Supervisor to stand somewhere else while he “Spoke to the boys”.

The Safety Supervisor responded to Mr McDermott with words to the effect “No, not without the proper documentation”, to which Mr McDermott turned to the project workers and said “This is what we are fighting against”.

Mr McDermott left the site before the police arrived.

FWBC successfully alleged that through the above actions the official acted in an improper manner in contravention of the Fair Work Act.

Penalities

Penalties awarded against

Penalties awarded

CFMEU

$20,000

Michael McDermott

$4,000

Total

$24,000

Total penalities

$24,000