In a complaint lodged by primary engineering and construction firm Bechtel against the Construction, Forestry, Mining and Energy Union, the Fair Work Commission heard how 15 union officials allegedly contravened workplace safety requirements, abused Bechtel staff and wandered freely around the Curtis Island construction sites during six separate entries between March 2012 and April 2013.
Citing safety concerns under the Queensland Work Health and Safety Act 2011 and rights to hold union discussions under the Commonwealth Fair Work Act 2009, the union delegates allegedly used “private vessels” to gain entry to site in an express attempt to avoid Bechtel’s safety induction procedure.
While on-site, four of the union delegates allegedly disobeyed safety directions not to walk on a heavy haul road; two ignored safety barricades to exit areas with restricted access; eight left their Bechtel escorts against entry conditions; and one abused a Bechtel employee after removing personal protective equipment.
Booth originally suspended the entry permits of officials – including construction and general division Queensland branch secretary Michael Ravbar and assistant secretary Jade Ingham – last September for between one and five months over a right of entry dispute stretching back to March 2012.
Booth said at that ruling that both the CFMEU and the officials had failed the obligations that accompany the right by taking part in entries that had "all the hallmarks of stunts".
She ordered that the suspensions would apply from the time they applied for one as some of the 12 officials did even not hold an entry permit.
The Australian Mines and Metals Association said that September decision appeared to have “set a precedent that means unions which enter workplaces under state-based WHS legislation are still required to fully comply with the obligations of their federal permits granted under the Fair Work Act”
While the FWC full bench – comprising vice president Joe Catanzariti, deputy president Anne Gooley and Commissioner Paula Spencer – conceded yesterday that the commissioner was entitled to take account of past behaviour in resolving a dispute about future conduct, there needed to be a connection between the past conduct, the ongoing right of entry dispute and the suspension orders, which was not apparent in the commissioner's reasons.
"We are of the view that the suspension of permits, in the circumstances of the dispute before the Commissioner, was intended as a sanction for past conduct as opposed to an order for the purposes of dealing with an ongoing dispute," the bench said.
"This is particularly the case given that the suspension of a permit goes beyond the projects that were the subject of the dispute. Given the far-reaching consequences of such an order, significant care is required in order to determine that it is a suitable means of dealing with any dispute that arises under s505 of the FW Act.”
They added that a suspension order could be appropriate where a finding was made that it was likely that the official would repeat the behaviour that led to the dispute unless the permit was suspended.
However, the FWC bench concluded that Booth had not made such a finding, nor had she explained how the suspension orders would deal with the dispute and subsequently quashed the suspension orders.
Yet the bench did not interfere with the commissioner's recommendations that the company and the union organise a series of meetings and organise right of entry training for their employees.