The official entered the ‘Logan Enhancement Project’ road construction site in August 2018 (under the guise of powers prescribed by the Fair Work Act 2009), acted in an aggressive manner and abused the General Manager of a subcontractor company.
Throughout the initial court proceedings, the union official admitted to approaching the General Manager and yelling at him that he was a ‘f***ing dog c**t’. In handing down the penalty judgment, Justice Jarratt said:
“the conduct of [the union official] was unprovoked. The words he used were objectively offensive. They were unprovoked and aggressive. [His] conduct was, I accept, antithetical to the rights of entry regime established under the Fair Work Act and was a gross abuse of the entitlements given to [him] by is entry permit. His conduct was plainly deliberate.”
This week, Fair Work Commission Deputy President Val Gostencnik turned to consider whether the judge’s ruling warranted suspending or revoking the official’s entry permit. The Deputy President took into consideration that:
- The contravention had occurred only a few months after the official had commenced his role in the union (from his previous role as a ‘youth crew member’); and
- That ‘the power in s510 is protective and corrective, not penal’; and
- Submission made by the ABCC that the FWC ‘must send a message that such language is unacceptable’, and that the gravity of the conduct should attract revocation of a period of ‘at least a year’.
Ultimately the Deputy President found that the facts of the case, along with assessment of an array of similar breaches by the official ‘[make] it most appropriate that the permit be revoked’. The Deputy President stated that ‘Revocation will require a further application for an entry permit to be made’ and has banned the official for re-applying for a period of at least 3 months.
The decision to revoke the union officials permit is welcomed by the Master Builders Australia as a step in the right direction to dealing with building union conduct, however in the same vein it also highlights the deficiencies in the current framework. In particular, it highlights the irregular or haphazard application of the current framework relating to Right of Entry permits, as, put simply, instances where courts have found union officials have abused their rights for ulterior purposes and acted in similar ways to this official do not even come close to the amount of permits revoked by the FWC for similar conduct.
We expect that this decision will reignite debate surrounding the Ensuring Integrity Bill, as we look toward the recommencement of Parliament in less than two weeks.