CFMEU penalties for failing to comply with OHS requirements increased
A Full Federal Court has imposed increased penalties against the Construction, Forestry and Maritime Employees Union (CFMEU) and one of its officials for unlawful conduct at a construction site in Brisbane.
In 2022, the Australian Building and Construction Commissioner (ABCC) commenced legal action against the CFMEU and its official Dean Rielly for unlawful conduct at a construction site that was part of the Queensland Cross River Rail project.
In 2023, the Federal Circuit and Family Court found that Mr Rielly, and through him the CFMEU, breached two sections of the Fair Work Act which apply to permit holders – section 499 (failing to comply with an occupational health and safety requirement) and section 500 (acting in an improper manner). The Court imposed penalties of $37,500 against the CFMEU and $5,500 against Mr Rielly.
The CFMEU and Mr Rielly subsequently appealed to the Full Federal Court.
While their appeal was partly successful, the Full Federal Court has now imposed increased penalties of $60,000 against the CFMEU and $6,300 against Mr Rielly, having considered various factors including the seriousness of Mr Rielly’s conduct and the CFMEU’s history of failing to comply with various provisions of the Fair Work Act.
The conduct occurred in July 2021 at a worksite in Brisbane that was part of the Queensland Cross River Rail project.
The conduct involved Mr Rielly failing to comply with occupational health and safety requirements and acting in an improper manner, when he:
- failed to sign the visitor register and to complete a visitor induction
- entered areas of the worksite to which access was restricted and refused to leave when requested to do so; and
- failed to read and obey all safety signs at the worksite.
Justices John Halley, Scott Goodman and Shaun McElwaine found that: “Objectively, Mr Rielly’s behaviour leads us to conclude that he did not consider that he was bound to comply with those requirements for undisclosed reasons at best or, at worst, was fully cognisant of the requirement to comply and chose to ignore them in an act of open defiance.”
The Justices found that there was a need to impose penalties to deter the CFMEU, Mr Rielly and others from similar contraventions in future.
“For permit holders generally, it is obvious that an appropriate pecuniary penalty must be imposed to deter others from engaging in conduct in defiance of reasonable Occupational Health & Safety requirements that apply to worksites,” the Justices said.
Under federal legislation, the case was one of those transferred from the ABCC to the Fair Work Ombudsman in December 2022.
Fair Work Ombudsman Anna Booth said the court penalties affirmed the seriousness of breaching laws requiring permit holders to act in a proper manner.
“There is no place for improper conduct by permit holders on any worksite or for failure to comply with occupational health and safety laws,” Ms Booth said.
“Improving compliance across the building and construction industry is a priority for the Fair Work Ombudsman, and we will investigate reports of non-compliance and hold to account those who act outside the law.”
The Fair Work Ombudsman has now secured total penalties of more than $3 million in court cases that have been finalised since they were transferred to it in December 2022.
All building and construction industry employers and employees can seek sector-specific workplace information, advice and assistance from the Fair Work Ombudsman.
Employers and employees can also visit www.fairwork.gov.au or call the Fair Work Infoline on 13 13 94 for free advice and assistance. An interpreter service is available on 13 14 50.
