The Federal Circuit Court has imposed total penalties of $55,080 against the CFMMEU and its site delegate after he pressured a landscaper to join the union despite only being contracted to work on a Toowoomba building site for a couple of days.

The CFMMEU was penalised $48,600 which is 90 per cent of the maximum fine. The CFMMEU’s site delegate, Peter D’Arcy was penalised $6,480.  

Mr D’Arcy admitted that he made a reckless misrepresentation to the worker that he had to join the union prior to a site induction at the Grand Central Shopping Centre site on 27 March 2017.

The Court heard Mr D’Arcy entered the induction room on site and questioned workers on whether they were union members.  When the landscaper told Mr D’Arcy he was no longer in the union, Mr D’Arcy said he would “have to re-join the [Union]”. The following exchange then took place:

Worker:  “what if I don’t join the Union?”

Mr D’Arcy: “That’s fine, but you can’t work here, you’ll have to go and work somewhere else.”

When another worker heard this exchange and said words to the effect “Isn’t that illegal?”, Mr D’Arcy said “if you want to work here then you have to be part of the union”.

In response to a question from the first worker about how much the CFMMEU membership would cost, Mr D’Arcy said it would be around $500. The following exchange then occurred:

Worker:I’m only up here for a couple of days. So I’m basically coming up here to work for nothing.”
Mr D’Arcy: “Well, that’s just the way it is.”

In his judgment Judge Egan said Mr D’Arcy’s conduct had the effect of promoting a “closed union shop”. He also said Mr D’Arcy’s behaviour had “effectively, and practically, an element of coercion.” 

“the worker would effectively be working to pay the union its dues rather than working for his own monetary gain. After paying the union fee, the worker would have had nothing to show for his having provided his labour.” 

“the conduct on the part of [Mr D’Arcy], when told by the worker that he would be working for nothing if he signed both forms [union membership and payroll deduction forms], was one of indifference to the plight of the worker.”

ABCC Commissioner Stephen McBurney said the case was yet another example of why workers’ rights to freedom of association must be protected.

“This is a case where the worker’s livelihood was threatened because he wasn’t a member of the union.  It is unacceptable for workers to be subject to an interrogation by the union delegate prior to their induction on site,” Mr McBurney said.

“The Court rightly described the unlawful conduct as “blatant and uncaring”. The union official made a reckless misrepresentation about the worker’s right to freedom of association despite being called out for his unlawful behaviour by another worker.
“Since 2 December 2016, the CFMMEU and its delegates have been successfully prosecuted for breaking the law in Brisbane, the Gold Coast, Gladstone, and now Toowoomba. 
The Courts have imposed total penalties of $2.6 million in ABCC litigation in Queensland, of this figure $2.4 million is against the CFMMEU. 
“The ABCC has a further 12 pending cases before the Courts in Queensland, 10 of which involve the CFMMEU.  They concern alleged unlawful conduct on building sites in Brisbane, Gold Coast, Cairns, Toowoomba and the Sunshine Coast.
“The ABCC stands ready to assist any worker who has their livelihood threatened by unlawful demands that infringe their basic right to determine whether or not they join a union.”

Media Release
8 March 2019

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James Martin

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