CEPU and delegate ordered to pay $52,000 for misrepresentations about union membership at Cairns Convention Centre redevelopment
The Federal Circuit and Family Court has today penalised the CEPU $42,000 and its site delegate, Mitchell Brown, $10,000 after Mr Brown deliberately delayed workers at the Cairns Convention Centre redevelopment because they were not members of the union.
What was estimated to be a one-hour routine drilling task, as part of the $176 million centre expansion, took two days for the workers to complete due to repeated interruptions by Mr Brown and demands to stop work.
During his interactions with the workers over several days, Mr Brown repeatedly asked the workers to join the CEPU and said words to the effect of: "What are you doing? Why aren't you part of the union?" and "By the end of this site you'll be joining the union".
Mr Brown targeted the two workers because they were not members of the CEPU.
In a meeting with the workers' employer, Mr Brown said all workers at the site needed to join the union. The statement was false and an attempt to pressure the employer (and through him the two workers) to join the union.
The workers believed they needed to join the CEPU to ensure Brown would stop interfering with their work and on 8 September 2020 they joined the union, immediately reporting that they felt pressured to do so.
Judge Vasta in his judgment said of Mr Brown's actions:
The actions of [Mr Brown] resulted in the interference and hindering of the two employees to actually complete their tasks. This resulted in a waste of resources, the unnecessary purchase of another ladder and the need to work for nearly 2 days to complete a job that should have taken approximately one hour. Industry just cannot afford to tolerate such wastage in today's market.
[The workers] also expended money on union memberships which they did not want but felt pressured to complete. It is instructive to note that once the union memberships were obtained, the spurious interference by [Mr Brown], with the work done of these two employees, ceased.
The misrepresentations made by [Mr Brown] had an effect on [the principal contractor] who is a contractor simply trying to make a living by utilising his skills and knowledge of his particular trade. The fact that he felt a responsibility to protect his workers illustrates the nefarious nature of what it was that [Mr Brown] was doing.
These actions were deliberate conduct designed solely to overwhelm any resistance, by any of these three men, to joining the union. [Mr Brown] did so as a representative of a very large and powerful union that has had a very proud history of standing up for the rights of workers. This fact added to the overwhelming nature of the actions of [Mr Brown].
But more importantly, these actions strike at the very heart of a person's right of freedom of association. Any conduct that seeks to destroy, or even put limitations upon, the inalienable right of freedom of association is a repudiation of the principles that have made our nation the bastion of freedom that it is. Such behaviour is totally contrary to the fundamental aims of the FW Act.
On the question of contrition, Judge Vasta stated:
The contrition exhibited and the corrective action taken by the (CEPU) is to be lauded. I have been incredibly impressed by what the CEPU has done in this regard.
ABCC Commissioner Stephen McBurney noted the findings of the Court and the judicial comments directed to the question of contrition by the CEPU.
"The fact the CEPU was prepared to engage constructively with my agency, thereby reducing the likely cost to taxpayers of lengthy legal action, has led to a lower penalty than may have otherwise been the case," Mr McBurney said.
"In this instance I appreciate the contrition demonstrated by the union and the corrective action it has undertaken to provide additional training to all of its delegates to ensure similar contraventions of this nature do not occur again in the future.
"The fact remains, however, that the conduct in this case was unlawful. The workers in this case were hindered from doing their job by interference from a site delegate.
"Freedom of association under the Fair Work Act is based upon the fundamental principle that Australian workers have a choice whether or not to join a union. This choice is respected in most Australian workplaces. Regrettably, all too often in the building and construction industry, we see this choice negated. This is not an isolated case, but a regular occurrence dealt with by the ABCC."
If you have been pressured to join a union or have been subject to threats, interference or intimidation on site you can call the ABCC on 1800 003 338 for free advice and assistance.
