The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has been fined $58,000 and its official $8500 for failing to adhere to safety requirements during a visit to a Pacific Highway upgrade site on the Gold Coast in 2021.
In a Federal Court decision published yesterday, Dean Reilly admitted to contravening Section 500 of the Fair Work Act 2009 (Cth) by failing to comply with a requirement to be accompanied by a fully inducted, building company representative at all times while at the M1 Motorway site between Varsity Lakes and Burleigh.
The CFMMEU contravened s 500 as a result of being, “by way of act or omission, directly or indirectly, knowingly concerned in or party to” Mr Reilly’s contravention.
On 23 April 2021, Mr Reilly had exercised a right of entry under the Workplace Health and Safety Act 2011 (Cth) to consult with site workers in relation to a suspected safety breaches.
Despite the escort requirement, he entered – on foot and unaccompanied – an area where work was being conducted that included asphalt laying, which involved working at very hot temperatures and with heavy machinery.
Mr O’Reilly was approached by the project safety manager and site superintendent but ignored their instructions to leave the area, continuing to consult workers in the area.
“He walked alongside the site within the vicinity of two moving rollers, two trucks moving in and out of the area, a paver, a hopper and a moving remixer and came within two metres of the moving paver and remixer. When this was happening, (the site managers) were generally standing in front of the first respondent,” Judge Thomas said.
Mr Reilly then walked between parked trucks and attempted to speak to the driver of a reversing truck. The site superintendent directed the truck driver to stop.
The asphalting work was temporarily halted, with Work Health and Safety Inspectors attending the site to speak to Mr Reilly and the site managers.
The Fair Work Ombudsman (FWO) submitted Mr Reilly’s conduct occurred in a high-risk environment, and caused work to be stopped.
“The conduct of the first respondent was deliberate and designed to cause interruptions at the project site. It should be accepted that, as a permit holder, the first respondent was aware of his obligations on site and knew (or ought to have known) that the conduct was dangerous,” it stated.
The FWO submitted a penalty should be “significantly high” to deter the union and other organisations from engaging in similar conduct.
It pointed to the CFMMEU’s description in 2017 by the Federal Court as a “recidivist” organisation having “a lamentable, if not disgraceful, record of deliberately flouting industrial laws”, and that regularly, “very large” penalties had been imposed on the union to no avail.
It also referred to Mr Reilly’s history of contravening conduct in New South Wales in 2019: at the Coffs Harbour Hospital site, for which he was fined $10,000 and the union $80,000; and at the Pacific Highway Upgrade site near Glenugie, for which he was fined $8820 and the union $100,800.
The FWO recommended he be fined $8500 and the union $58,000. The respondents argued for a fine of $3000 to $4500 for Mr Reilly, and a fine of $18,000 to $25,000 for the union.
In issuing the penalties suggested by the FWO, Judge Thomas said the CFMMEU was an organisation “of significant size, resources and influences”. He referred to an FWO schedule containing 200 entries of past penalties imposed on the union, stating the number was “significant and underlines the need or specific deterrence”.
He declined to make a non-indemnification order in respect of Mr Reilly because the union official was no longer a permit holder – the Fair Work Commission last year refused the CFMMEU’s application to renew Mr Reilly’s federal entry permit, finding he was not a fit and proper person to hold one – and because was not subject to a penalty order at the time of the offending conduct.