During a negotiation over an enterprise bargaining agreement, the CFMEU engaged in questionable behaviour and has been fined for “flagrant disregard for the rights of occupiers”.
The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) has been found liable by a Federal Court for disrupting work at a construction site under the guise of an urgent safety claim. Federal Court Justice Geoffrey Flick ordered the union to pay $313,000 as a result.
There were seven officers and employees held accountable for the failed ruse, which breached four sections of the Fair Work Act 2009.
The ruling relates to two incidents, which took place in June 2014 and March 2015. In both instances, Flick found CFMEU representatives entered Sydney BKH Group construction sites in order to sway the organisation into committing to an enterprise agreement, complete with site allowances. One CFMEU representative (who was personally fined $2500) allegedly kicked over a safety railing with the intent to make the site appear like a safety hazard.
It was also suggested that BHK was targeted at random by the CFMEU, when officials reportedly told the contractor during the first incident that they better “sign the new EBA [or] we will pick one of you and smash your jobs”. Via text, another BKH worker was told: “eenie meenie miney mo”, contributing to the suspicious appearance of the union’s actions.
In the second incident, the CFMEU called foul on a major concrete pour, telling employees that conditions were not safe and that the job should be stopped.
The jig appeared to be up, as far as Flick was concerned, when the CFMEU abandoned the safety claims after BKH agreed to pay employee’s the site allowance. “The professed concerns as to safety voiced on 11 March 2015 were never followed up,” said Flick.
According to Flick, there wasn’t “any reasonable basis upon which any such genuine concern could be founded”.
“There was, moreover, an unexplained insistence upon gaining an immediate right of access to the premises given the fact that: there was known to be a safety committee on site, and no reservation had been expressed as to its effectiveness; and the work health and safety officer on site… was a CFMEU delegate,” said Flick.
As reported in the AFR, the latest ruling rounds out a rather expensive four months for the CFMEU – facing fines of $1.1 over that short period, and $8.1 million since December 2016.
In his ruling, Flick directed the CFMEU to publish advertisements relating to its breaches and the relative penalties associated with these acts.
“Advertisements of the kind envisaged will hopefully go some way to ‘preventing’ further like contraventions of the Fair Work Act,” said Flick. “At the very least, advertisements may cause individual union members to pause before pursuing unlawful conduct.”
New industrial manslaughter laws?
Disagreements over workplace safety are frequently contentious, and often involve unions and industry associations in conflict. This is the case with a recent probing into laws surrounding industrial manslaughter.
In Queensland and the ACT, industrial manslaughter is a crime that is punishable with up to 20 years in prison. But in Australia’s remaining states and territories, offenders can be jailed for up to five years and are faced with a $60,000 fine for “category one” offenses, which entails, “recklessly exposing employees to the risk of death, serious injury or illness”.
The CFMEU told a parliamentary inquiry in August that industrial manslaughter should be classified as a criminal offence. In their address, the CFMEU said the law should extend to any person killed in a work-related accident, including accidents involving members of the public.
But Mark Goodsell, head of workplace health and safety at the industry association Australian Industry Group, raised doubts over whether the proposed national law would actually deter problem employers.
“There’s an assumption that if you have industrial manslaughter that the only reaction will be [from] a group of bad employers out there, who will suddenly wake up the next morning and go; ‘Oh well I won’t be bad anymore, I will now take safety seriously’,” he is reported as saying on ohscareer.com.au.
Goodsell also says that employers require more detail about how the criminal investigation and prosecution of industrial manslaughter would unfold.
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