The Federal Circuit and Family Court of Australia has today penalised the CFMMEU and former official Simon Gutierrez $93,160 after Mr Gutierrez acted in an improper manner at the Westconnex Stage 2 site in Sydney on 21 February 2019.
The Court found Mr Gutierrez engaged in aggressive and intimidating conduct while at the site by saying words to the effect of "shut up" and "f**k off" to two representatives of the head contractor. The Court made a further finding that Mr Gutierrez walked up to the site's employee relations coordinator, stood about 20 centimetres away from him and blew cigarette smoke in his face.
The Westconnex project is currently Australia's largest road construction project with works expected to be completed in 2023. The project will provide 33 kilometres of road network without a single traffic light.
While attending the Westconnex Stage 2 site, Mr Gutierrez defied a direction to leave a designated isolation zone – established as part of the construction of the M5 Beverly Hills to St Peters underground motorway tunnels.
Mr Gutierrez, who had not completed a site safety induction, caused work to stop on part of the project after he entered the site's main haul road where forklifts, excavators and large haul trucks were operating.
After walking along the main haul road, Mr Gutierrez moved a barrier out of the way on the secondary haul road to access a construction area, while ignoring repeated directions to leave the area and return to the site office.
The Court found the conduct of Mr Gutierrez and the CFMMEU contravened the right of entry provisions of the Fair Work Act.
In delivering judgment, Judge Manousaridis said:
"A person's placing his or her face some 20 centimetres away from the face of another and blowing smoke in the other person's face would in most circumstances be improper. It was improper in the circumstances of this case, and significantly so."
Judge Manousaridis went on to say:
"Mr Gutierrez has not manifested any contrition or remorse by, for example, apologising to [the senior safety advisor] or [the employee relations coordinator]."
In commenting on Mr Gutierrez ignoring directions to leave the isolation site, Judge Manousaridis said:
"That manifests a contemptuous disregard by Mr Gutierrez of the safety procedures that were in place at the Site, and of [the senior safety advisor], the person responsible for the implementation of those safety procedures."
ABCC Commissioner Stephen McBurney said the matter again highlighted the CFMMEU's disregard for Australia's workplace laws.
"This case illustrates a clear and flagrant example of a union official abusing the right of entry rights afforded to him," Mr McBurney said.
"In June 2018, the CFMMEU applied to the Fair Work Commission for an entry permit for Mr Gutierrez. Mr Gutierrez disclosed a prior criminal conviction in February 2015 for supplying a prohibited substance of a commercial basis and for which he was sentenced to a term of imprisonment.
"The CFMMEU submitted to the Commission that given Mr Gutierrez's honesty, contrition and remorse, his February 2015 conviction ought to have little impact on the Commission's assessment of Mr Gutierrez's character as a fit and proper person to hold an entry permit.
"While this submission was specifically rejected by the Commission, it decided on balance to grant Mr Gutierrez a permit, being satisfied that he was a fit and proper person to hold an entry permit.
"Mr Gutierrez has failed to comply with the important obligations of a permit holder. As noted by the Court, there is a distinct absence of contrition and remorse in the present case.
"Mr Gutierrez no longer holds an entry permit.
"The object of the Fair Work Act is to provide workplace relations laws that are fair to working Australians. The ABCC will zealously guard the protections set out in the Fair Work Act.
"If anyone experiences abuse, threats, intimidation or unlawful conduct on building and construction sites, you can count on the ABCC to investigate, and where appropriate, litigate against contraveners."
Note: On 9 June 2021 Mr Gutierrez was penalised $6,000 for contravening s 54(1) of the Building and Construction Industry (Improving Productivity) Act 2016 by taking action against WGC Crane Group Pty Ltd with intent to apply undue pressure to WGC to make or approve a building enterprise agreement with the CFMMEU.
