FWO Secures Penalties Against CFMEU and Victorian Union Official

The Fair Work Ombudsman has secured penalties in the Federal Court against the CFMEU and one of its officials who engaged in adverse action at a road project in Melbourne in 2021.

The official, Joseph McCrudden, has been employed as an organiser with the CFMEU's Construction and General Division, Victorian and Tasmanian branch, for several years. After emigrating from Ireland to Melbourne in 2005, Mr McCrudden worked as a labourer for various companies and, in 2010, was elected as a union delegate and an elected Health and Safety Representative.

On 25 June 2021, Mr McCrudden entered a road project in Victoria where improvements were being undertaken to the Mordialloc Freeway between the Dingley Bypass and south of Springvale Road (the Project). The contractors for the works were McConnell Dowell Constructors (Aust) Pty Ltd and Decmil Southern Pty Ltd.

Mr McCrudden entered the Project in his role as a CFMEU organiser and permit holder and was there to inquire about suspected contraventions of the Victorian OHS Act.

In evidence before Federal Court Justice Amanda Mansini, McCrudden recalled saying to a male Health and Safety Manager words to the effect of, "You will not have much of a future if you continue talking to the ABCC. You'll see mate, you'll see".

Mr McCrudden accepted that these words amounted to adverse action against the manager. He regretted his comments and behaviour and the words he used. He has subsequently undergone training by an external provider on how to behave appropriately when entering sites and understand the various workplace rights that exist.

He had no previous convictions for contravening industrial laws.

As Justice Mansini noted,

"The contravening conduct is not disputed. It involved CFMEU official Mr McCrudden, making an intimidatory threat directed at the Project Health and Safety Manager and his future career in the industry. Like any threat, it was intended to achieve an end – and, in this way, was a deliberate attempt to prevent the manager from exercising his workplace right (and responsibility) to make a complaint or inquiry to the then building industry regulator".

Taking into account all of the relevant circumstances, Justice Mansini determined that the appropriate penalty to be imposed on Mr McCrudden was $3,300. She also chose to impose a fine of $33,300 on the union.

Justice Mansini rejected submissions on behalf of the organiser and the union to consider a wholly suspended penalty for a period of 5 years. As she noted,

"I am not satisfied that a suspended penalty for any period of time, in whole or in part, would be a meaningful deterrent or meet the purpose of the civil penalty regime".

In commenting on the penalties, Fair Work Ombudsman Anna Booth said they affirmed the seriousness of breaching laws on building sites. She said that

"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 are acting outside the law".

She also commented,

"There is no place for adverse action in any workplace in Australia. All workplace participants, including employers and employees, have the right to speak to regulators without facing threats of negative consequences, and we urge them to do so".

Our reading of this case is that it provides a clear direction from the court that particular care must be taken to ensure the rights of all participants, employers, employees and representatives or unions to engage with regulators without the fear of reprisal or threats of adverse action. Should a person in a workplace indicate that they may make a complaint, they should be provided with clear communication to reinforce their right to do so.

"Yes. That is your right and you are free to do so at any time. We would participate in any process."

For questions about industrial action, union right of entry, dealing with delegates and organisers, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.