28 August 2018

In a recent Federal Court decision, a union and officials who attempted to “leverage safety” for industrial objectives have been fined nearly $140,000, while a company and its director have been fined $111,000 for their actions against WHS permit holders, inspectors and police.

The Federal Court fined Michael McDermott (former assistant secretary of the South Australian construction division of the CFMMEU) and Aaron Cartledge (former secretary) $14,300 and $3,500 respectively for unlawfully entering an Adelaide construction site in 2014, in breach of section 500 (“Permit holder must not hinder or obstruct”) of the Fair Work Act 2009 (Cth) (the Act). NSW-based CFMMEU official Anthony Sloane was also fined $3,000 for unlawfully entering the site on one occasion, and the union was fined $116,790 after the Court found it was liable for the three men’s conduct.

Justice Natalie Charlesworth found that in one incident, McDermott entered the site without notice and told a representative of the principal contractor that he didn’t need to give notice because he only wanted to “have a chat with the guys at lunchtime“.

She found that on another occasion, both McDermott and Cartledge entered the site without notice to hold a meeting, and the representative expressed dismay at their failure to comply with right-of-entry laws. Cartledge responded by saying they would leave at the end of the meeting, and “turn a blind eye” to a safety issue with the formwork, she found.

His statements that he would ‘turn a blind eye’ to purported safety concerns and that [the representative] had been given a ‘sneak peek’ of what might occur next time the officials visited reinforced that intended message,” she said.

Mr Cartledge adopted an attitude that he could and would ignore the requirements of the Act in their application to permit holders as and when it suited him, and yet he impliedly threatened action pursuant to the same Act in his dealings with [the representative].”

After the three men and the union were fined, Australian Building Commissioner Stephen McBurney said that showing a valid right-of-entry permit wasn’t an onerous requirement, and “one of the most concerning aspects of this case is the attempt to leverage safety for the industrial objectives of the CFMMEU”.

Tips on handling Union visits

Union officials do not have an automatic right to enter workplaces. The Act provides permit holders with a right to enter sites for particular purposes and sets out the requirements they must comply with when on a site.

Before entering your site, a union official must:

  • hold a valid federal permit; and
  • provide at least 24 hours’ written notice of entry (unless the entry is pursuant to a State or Territory occupational health and safety (OHS) law).
  • When a union official arrives at a workplace, they must show their right-of-entry permit if the employer asks to see it. They also must show it when they want to access documents.

If a union official does not provide an entry notice, or when on site, does not produce a federal permit/entry notice upon request, you have the right to refuse entry or ask the official to leave the site.

If a union official does not have a right to enter and is on your site without consent, make it clear to the union official that they do not have your consent and ask them to leave.

If they refuse, you should seek advice from your employer association or legal advisors.