THE UNION behind a three day workers walk-off on a Newcastle University construction site over the right to wear shorts and short-sleeved shirts has been slammed by a judge as “reprehensible” enough to warrant maximum penalties.
The Construction Forestry Mining and Energy Union showed “woeful regard for lawful conduct”, said Federal Circuit Court Judge Sylvia Emmett before fining the union the maximum $51,000 for breaching a section of the Fair Work Act.
Union organiser Pomare Auimatagi was fined $7500 for “organising, encouraging and inciting” the majority of 82 workers to walk off a John Holland building site at the university from January 17, 2014 and stay off for three days.
The action was to coerce John Holland not to enforce its “Two longs” safety policy requiring building workers to wear long pants and long-sleeved shirts to protect them from the sun and abrasions.
The Australian Building and Construction Commissioner told the court Mr Auimatagi’s actions were “deliberate, intentional and designed to put significant pressure on John Holland not to enforce the policy”.
Mr Auimatagi and the union did not make use of available dispute resolution mechanisms.The commissioner described Mr Auimatagi’s actions as “nothing short of unconscionable”. He was aware industrial action was prohibited, the commissioner said.
In a decision on Thursday Judge Emmett said Mr Auimatagi and the union’s conduct, even if well-intentioned or in the interests of workers, “does not diminish the seriousness of the contraventions”.
Mr Auimatagi had not been charged with an offence before but the union was a “recidivist”, that “consistently demonstrated an ongoing disregard for the law” and was “not deterred even by significant penalties”.
Judge Emmett said the union had contravened 136 pieces of industrial law since 2000, or more than seven per year on average, with 40 of those contraventions for encouraging workers to stop work or leave a site.
She heavily criticised the union and Mr Auimatagi, who no longer works for the union, for showing no remorse or contrition.
“I take little comfort in the fact that he no longer works for the CFMEU in circumstances where he continues to work in construction and has failed to demonstrate any contrition whatsoever,” Judge Emmett said.
“Both respondents denied throughout the trial that they engaged in unlawful conduct.”
She said there was no evidence of direct loss to John Holland but found the company’s loss was “real and substantial”.
Australian Building and Construction Commissioner Stephen McBurney said the conduct in the matter had put the health and safety of workers at risk and was inconsistent with the union’s own heat management policies.
“The company’s safety policy is one most Australians are familiar with. The unlawful conduct of the CFMEU official was undertaken in defiance of that policy,” Mr McBurney said.
“I am concerned about a number of aspects of this case; firstly, the actions taken to undermine a policy designed to protect workers on site, secondly the CFMEU’s failure to acknowledge the consequences of those actions, thirdly the lack of remorse or contrition, and finally the history of offending referred to in the judgment of the Court,” he said.