The CFMEU’s continuing disregard for the rule of law
has been considered in a recent decision by Fair Work Commission (the Commission) Vice President Graeme Watson to refuse to renew a CFMEU official Michael Myer’s right of entry permit.
Vice President Watson determined that the official has failed the ‘fit and proper person’ test under section 512 of the Fair Work Act 2009 (FW Act), finding that the evidence demonstrated the official’s “general disregard” for the legislation and for the rights of employers and occupiers of building sites. The official was found to have adopted an approach sanctioned by the CFMEU.
Vice President Watson also found that on numerous occasions the CFMEU official had shown “a complete lack of preparedness to comply with the rights and obligations of permit holders”. Vice President Watson further found that “to the extent that the behaviour is sanctioned or encouraged by the union, [the official] has demonstrated a preparedness to follow the approach sanctioned rather than comply with the law” – and that this was “highly relevant” to his assessment of the official’s capacity to hold a right of entry permit.
This followed submissions by FWBC Director Nigel Hadgkiss that argued that the Commission should exercise ‘caution’ in granting the official’s application, given the CFMEU’s propensity to engage in a “pattern of repeated and calculated contraventions of the Act” and “its lack of contrition or remorse” for that conduct.
This is an important development, given section 508 of the FW Act provides the ability for FWC to restrict right of entry rights held by unions such as the CFMEU, where it is satisfied that the organisation, or an official of the organisation, has misused those rights. This includes the banning, for a specified period, of the issue of entry permits in relation to the organisation. Examples provided by the FW Act in respect to misusing rights include where “the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer”.
It is encouraging that Vice President Watson has recognised the more general pattern of rule breaking by the CFMEU, stating:
“It appears to me that the poor history of compliance arises from deliberate behaviour sanctioned by the organisations”.
Master Builders continues to advocate that the CFMEU and its officials should act within the rule of our industrial laws. No one is above the law. An organisation that continues to consciously and flagrantly breach the Fair Work Act 2009 should be brought to account for this.