CFMMEU and union officials fined $115,000 after Fair Work Act breaches brought by ABCC

In imposing the penalties, a judge said the union appears to accept “prosecution for breaches … as an occupational hazard”, with 192 contraventions since 2000.

In a case brought by the building industry regulator the Albanese government is preparing to axe, a court has fined the CFMMEU and two union officials nearly $115,000 after the pair caused a concrete pour to be abandoned at a $5 billion Pacific Highway upgrade in northern NSW.

In the Federal Circuit Court at Parramatta on Thursday, Judge Douglas Humphreys penalised the Construction, Forestry, Maritime, Mining and Energy Union of $100,800 over two breaches of the Fair Work Act. The maximum would have been about $126,000.

CFMMEU officials Dean Rielly and Paul Fitzpatrick were personally fined $8820 and $5040 respectively. The top penalty that could have been imposed on each of them was $12,600.

Barrister Ian Latham, for the union and its officials, told the court his clients would seek a stay order then appeal of both the penalty and liability. The court is likely to make a decision on the stay order on Friday, August 12.

The case was commenced by the Australian Building and Construction Commission (ABCC) stemming from events in August 2019, when workers employed by two companies were attempting to pour concrete to form a Pacific Highway bridge about 10 kilometres south of Grafton.

CFMMEU official Dean Rielly was one of the two officials fined. Picture: Supplied

The union officials stood at the back of a concrete truck while raising what they said were safety concerns, including chemical storage, the distance to the toilet, and access to water and shade.

Issues such as the distance to the toilet were rejected by the court. And the officials were criticised for failing to properly follow-up their supposed worries.

The court also rejected Mr Rielly’s claim that the truck reversed towards him “without a spotter … in a dangerous manner”.

Prime Minister Anthony Albanese has moved to abolish the ABCC. Picture: NCA NewsWire / Gary Ramage

In May, Judge Humphreys found the officials breached section 500 of the Fair Work Act “by intentionally hindering or obstructing … the concrete pour.”

On Thursday, in his written reasons for the penalties, he said the union had “a long and troubled history of breaches of the relevant workplace legislation,” with contraventions in 192 cases since 2000.

“It is a union that appears to have a preferred mode of business that accepts prosecution for breaches of the relevant legislation as an occupational hazard, and presumably the imposition of pecuniary penalties in the same casual manner,” he said.

DELIBERATE AND INTENTIONAL

The court was satisfied that Mr Rielly took the lead role in the contraventions, he added.

“At all times, Mr Rielly deliberately and intentionally refused to move away from the back of the concrete agitator until after the concrete pour was abandoned,” the judge said.

Last year, a court penalised the CFMMEU $80,000 and Mr Rielly $10,000 for threatening, inciting and encouraging a contractor to enter into an enterprise agreement with the CFMMEU and terminate its contract with a labour hire company because that company did not have a CFMMEU agreement.

In late July, Labor’s Workplace Relations Minister Tony Burke said the federal government was pulling back the ABCC’s powers to the “bare legal minimum” and that by the end of the year it would introduce legislation to abolish it.

It is possible that the Fair Work Ombudsman could investigate similar breaches in the future, if it had the resources.

The judge said Mr Reilly, pictured and Mr Fitzpatrick didn’t comply with a request to leave the site. Picture: Facebook

At 12.30pm, the pour was abandoned and six cubic metres of concrete was dumped.

In his judgment, delivered in May, Judge Humphreys said “Mr Fitzpatrick agreed that he and Mr Rielly did not comply with a request to leave from the area behind the concrete agitator, but denied that repeated requests were made.”

Judge Humphreys rejected Mr Rielly’s claim that the concrete truck reversed “without a spotter … in a dangerous matter” and the claim that the distance to the toilet was a safety concern.

The court accepted that after the union officials left the site at 1.10pm, they went to a company compound nearby for a meeting about the safety concerns.

POUR ‘INTENTIONALLY’ HINDERED

The union’s Mr Rielly told the court that while he did deliberately stop the pour, he did not position himself behind the concrete truck. Rather, he said, it “reversed onto where I was standing having conversations” while raising “serious” and “imminent risk” concerns.

The other union official, Mr Fitzpatrick, told the court he raised concerns about the spotter being “in the mud” instead of guiding the reversing truck.

But the judge said “there is no evidence before the court as to further follow up by Mr Rielly or Mr Fitzpatrick following the meeting at the … compound”.

Judge Humphreys found the union officials breached section 500 of the Fair Work Act “by intentionally hindering or obstructing … the concrete pour.”

Late last month, Labor’s Workplace Relations Minister Tony Burke said the federal government was pulling back the ABCC’s powers to the bare legal minimum and that by the end of the year it would introduce legislation to get rid of the regulator.

Last year, a court penalised the CFMMEU $80,000 and Mr Rielly $10,000 for threatening, inciting and encouraging a contractor to enter into an enterprise agreement with the CFMMEU and terminate its contract with a labour hire company because that company did not have a CFMMEU agreement.