The Federal Circuit and Family Court has penalised the CEPU and its official Daniel Bessell $72,000 after Mr Bessell was found to have acted in an improper manner by failing to comply with site occupational health and safety requirements during a visit to a Buddina construction site in Queensland in July 2018.

While attending the six-storey residential and commercial development known as the Hedge Project, Mr Bessell refused multiple requests that he be accompanied by the project manager and health, safety and environment adviser and to return to the muster point.

He also refused several police requests to leave the site.

The Court found Mr Bessell’s conduct on 3 July 2018 at the Hedge Project site contravened the right of entry provisions in the Fair Work Act 2009.

Mr Bessell was penalised $12,000 and the CEPU $60,000. The penalties are close to the maximum allowable penalty for a contravention of the Fair Work Act.

In considering the seriousness of the contraventions and the need for deterrence Judge Vasta said:

“In this matter, there were clear OHS requirements that were spelled out to [Mr Bessell]…. These requirements were not established to hamper any individual on the worksite. These requirements were established to ensure the safety of all individuals, especially visitors, on the worksite.”

“To totally disregard these requirements and to venture off at one’s own win is extremely dangerous conduct on a construction worksite. To try and justify such behaviour by attempting to portray an urgent, life-threatening situation is simply laughable especially when one considers the collateral evidence of what was actually done by [Mr Bessell] on the worksite. It would be extremely ironic if [Mr Bessell] were truly attempting to act in the name of safety by totally “trashing” the safety measures that were in place.”

In addressing Mr Bessell’s refusal of police requests to leave the site, Judge Vasta said:

“To ignore the request of the police is behaviour that must be deterred in the strongest possible terms. It matters not whether [Mr Bessell] truly believed that he was “in the right” and the police were wrong; the maintenance of law and order is sacrosanct. There were other avenues for [Mr Bessell] to challenge what the police were saying rather than maintaining the belligerent stand that he did.”

ABCC Commissioner Stephen McBurney noted the decision provides important guidance on right of entry:

“In this matter the Court has concluded that the permit holder ignored repeated occupational health and safety requests designed to protect visitors and workers on the site,” Mr McBurney said.

“It is also clear that Mr Bessell chose to ignore QLD police requests to leave the site.

“Right of entry laws enshrined in the Fair Work Act confer important rights and obligations on both permit holders and occupiers. The ABCC is committed to striking the appropriate balance. We will support permit holders to exercise right of entry on building and construction sites, but in doing so they must comply with the rule of law.

“The ABCC encourages employees, employers, site managers and union officials to download the ABCC OnSite app to access important information about their legal rights and obligations.”

 

 

 

 

Media Release
23 June 2022