CFMEU slapped with nearly $200k in penalties

Late last year (23 December), the Fair Work Ombudsman (FWO) secured $171,500 in penalties against the Construction, Forestry and Maritime Employees Union (CFMEU) and officials for alleged unlawful conduct.

The Federal Court has imposed $144,000 in penalties against the union and $27,500 against its officials after the FWO took the union to court late last year for alleged unlawful conduct at two construction sites in Victoria.

Nearly $30,000 in penalties were smacked on current and former CFMEU officials, James Simpson, Paul Tzimas, James Harris, and Jaxson Mahy for acting in an “improper manner” at two construction sites in Alphington and Croydon, in Victoria.

The allegations

The ombudsman said: “The unlawful conduct occurred at various times while the four officials were exercising their right-of-entry rights at a construction site of three apartment buildings in Alphington and a construction site of a multistorey residential apartment building with retail at Croydon. Ironside Construction Pty Ltd was the head contractor at both sites.”

According to the ombudsman, Simpson allegedly “acted in an improper manner” at the Alphington, Victoria construction site in March 2021 after turning off the site’s main power generator without authorisation or warning to any workers on site.

The ombudsman alleged that further contraventions occurred at the Croydon, Victoria construction site in April and May 2021 where Simpson, Tzimas, and Harris failed to comply with a request to leave the construction zone, while Tzimas and Mahy also acted in an “improper manner” by respectively causing an excavator to stop work, and accessing and taking photos of the site manager’s computer screen without permission.

The current and former union officials allegedly breached sections 499 or 500 of the Fair Work Act 2009, legislating that permit holders cannot exercise an OHS right unless they comply with reasonable requests to abide by the OHS requirements of those premises (s. 499), and that permit holders must not act in an improper manner (s. 500).

The decision

Justice Craig Dowling ruled that these contraventions were serious and noted that the union, Simpson, Harris, and Tzimas had committed prior contraventions.

The FWO noted that legal action against the union and its four officials was commenced by the Australian Building and Construction Commission (ABCC) in April 2022, and litigation was handed over to the FWO in late 2022. The commission was abolished in early 2023.

The Australian Labor Party pledged to abolish the commission back in its 2022 federal election campaign, swiftly introducing measures on its first day in Parliament to limit the commission’s powers.

In the federal government’s efforts to neuter the powers of the commission, the ABCC announced that its duties, including enforcing the act, as well as laws on industrial action, right of entry, and freedom of association, would be transferred to the ombudsman from 10 November 2022.

Following its abolition in February 2023, the minister placed the responsibility on the ombudsman and health and safety regulators to enforce the Fair Work Act and safety matters in the building and construction industry. Following its abolition, all litigation initiated by the commission was handed over to the ombudsman.

Ramifications and the future

The ombudsman, Anna Booth (pictured), said the FWO prioritises improving compliance across the building and construction sector and will investigate reports of non-compliance, holding unlawful behaviour to account.

It said that it had secured over $3.8 million in penalties for finalised court cases since taking responsibility for the ABCC’s litigation in December 2022.

This news follows the introduction of a commission of inquiry into the CFMEU and misconduct in the construction industry in September, for which commissioner Stuart Wood said serves an “important public interest”.