CFMMEU and former official penalised $93,160 over aggressive and intimidating conduct at Australia’s largest road infrastructure project

25.1.22 - The Federal Circuit and Family Court of Australia has today penalised the CFMMEU and former official Simon Gutierrez $93,160 after Mr Gutierrez acted in an improper manner at the Westconnex Stage 2 site in Sydney on 21 February 2019.

 The Court found Mr Gutierrez engaged in aggressive and intimidating conduct while at the site by saying words to the effect of “shut up” and “f**k off” to two representatives of the head contractor. The Court made a further finding that Mr Gutierrez walked up to the site’s employee relations coordinator, stood about 20 centimetres away from him and blew cigarette smoke in his face.

The Westconnex project is currently Australia’s largest road construction project with works expected to be completed in 2023. The project will provide 33 kilometres of road network without a single traffic light.

While attending the Westconnex Stage 2 site, Mr Gutierrez defied a direction to leave a designated isolation zone – established as part of the construction of the M5 Beverly Hills to St Peters underground motorway tunnels. 

Mr Gutierrez, who had not completed a site safety induction, caused work to stop on part of the project after he entered the site’s main haul road where forklifts, excavators and large haul trucks were operating.

After walking along the main haul road, Mr Gutierrez moved a barrier out of the way on the secondary haul road to access a construction area, while ignoring repeated directions to leave the area and return to the site office.

The Court found the conduct of Mr Gutierrez and the CFMMEU contravened the right of entry provisions of the Fair Work Act. 

In delivering judgment, Judge Manousaridis said:

“A person’s placing his or her face some 20 centimetres away from the face of another and blowing smoke in the other person’s face would in most circumstances be improper. It was improper in the circumstances of this case, and significantly so.”

Judge Manousaridis went on to say:

“Mr Gutierrez has not manifested any contrition or remorse by, for example, apologising to [the senior safety advisor] or [the employee relations coordinator].”

In commenting on Mr Gutierrez ignoring directions to leave the isolation site, Judge Manousaridis said:

“That manifests a contemptuous disregard by Mr Gutierrez of the safety procedures that were in place at the Site, and of [the senior safety advisor], the person responsible for the implementation of those safety procedures.”

ABCC Commissioner Stephen McBurney said the matter again highlighted the CFMMEU’s disregard for Australia’s workplace laws. 

“This case illustrates a clear and flagrant example of a union official abusing the right of entry rights afforded to him,” Mr McBurney said. 

“In June 2018, the CFMMEU applied to the Fair Work Commission for an entry permit for Mr Gutierrez. Mr Gutierrez disclosed a prior criminal conviction in February 2015 for supplying a prohibited substance of a commercial basis and for which he was sentenced to a term of imprisonment. 

“The CFMMEU submitted to the Commission that given Mr Gutierrez’s honesty, contrition and remorse, his February 2015 conviction ought to have little impact on the Commission’s assessment of Mr Gutierrez’s character as a fit and proper person to hold an entry permit.

“While this submission was specifically rejected by the Commission, it decided on balance to grant Mr Gutierrez a permit, being satisfied that he was a fit and proper person to hold an entry permit.

“Mr Gutierrez has failed to comply with the important obligations of a permit holder. As noted by the Court, there is a distinct absence of contrition and remorse in the present case.

“Mr Gutierrez no longer holds an entry permit.

“The object of the Fair Work Act is to provide workplace relations laws that are fair to working Australians. The ABCC will zealously guard the protections set out in the Fair Work Act. 

“If anyone experiences abuse, threats, intimidation or unlawful conduct on building and construction sites, you can count on the ABCC to investigate, and where appropriate, litigate against contraveners.” 

Note: On 9 June 2021 Mr Gutierrez was penalised $6,000 for contravening s 54(1) of the Building and Construction Industry (Improving Productivity) Act 2016 by taking action against WGC Crane Group Pty Ltd with intent to apply undue pressure to WGC to make or approve a building enterprise agreement with the CFMMEU.

 

CFMMEU and official penalised $90,000 for “industrial stalking” on the Coffs Harbour Hospital Expansion project 

31.1.22 - The Federal Circuit and Family Court has penalised the CFMMEU $80,000 and its official Dean Rielly $10,000 for threatening, inciting and encouraging a contractor to enter into an enterprise agreement with the CFMMEU and terminate its contract with a labour hire company because the company did not have a CFMMEU agreement.

The Court made declarations of four contraventions by Mr Rielly and four contraventions by the CFMMEU under the Fair Work Act.

The Coffs Harbour Hospital Expansion project will provide the community with a new Emergency Department, operating theatres, additional critical care and inpatient beds, as well as increased capacity for chemotherapy and renal dialysis. It is an important regional health project which at the time the Court noted was valued at $120 million.

At a meeting on 5 March 2019, Mr Rielly threatened the contractor that unless all workers including labour hire at the precast facility were covered by a CFMMEU enterprise agreement, then any precast manufactured for the Coffs Harbour Hospital would be turned around at the gate and not unloaded. The threats by Mr Reilly were made in a deliberate and direct manner and delivered in an at times heated conversation in which Mr Rielly swore and raised his voice.

Mr Rielly also demanded that the contractor ensure all employees at the yard leave the AWU and join the CFMMEU or he would arrange for a labour hire company covered by a CFMMEU enterprise agreement to replace the employer. 

Mr Rielly cited previous blockades effected by the CFMMEU of precast deliveries to construction sites to give force and substance to his threats. The ABCC alleged these were a reference to the Grafton Gaol Project and a Gold Coast project.

The Court found that the threats were not a one-off isolated utterance. They were made by Mr Rielly over a period of time to several senior representatives of the contractor.

If carried out, the threatened action would have real and serious consequences. It would have caused serious disruption to the contractor and the project by bringing about the stoppage of work, delaying practical completion, causing workers to lose their jobs, standing down of the contractor’s own employees and the wastage of transport costs and manufactured precast products that were destined for the project.

Judge Driver in his penalty judgment described Mr Rielly’s conduct as premeditated and said:

The Union was in the midst of a demarcation dispute with its rival union, the Australian Workers Union, which was a motivation behind Mr Rielly’s conduct in addition to the usual industrial objectives of the Union, to “organise” worksites and secure CFMMEU EBAs with employers and employees in what it regarded as its sphere of influence. The campaign by Mr     Rielly was premeditated and proceeded over a period of time from when he first heard about CPB obtaining the contract for the precast work, increasing in frequency and pressure at the very time CPB was negotiating a new EBA with its employees in March 2019, a form of “industrial stalking” of employers considered “non-compliant” with the Union’s industrial objectives.

Judge Driver commented on the CFMMEU’s behaviour:

The Union has provided no evidence that, as a consequence of any of these contraventions, or the burgeoning number of them that suggests it has a serious problem in both it and its officials complying with the law, it has instituted any corrective training or reform of its recruiting or employment procedures to better ensure compliance with industrial legislation or its obligations under such legislation. Its ongoing conduct is institutionalised.

The size and nature of the Union is significant. It has real power and influence in the building and construction industry. Indeed, a preoccupation with the perception of the Union’s power may well explain the nature of the conduct engaged in on this occasion.

Judge Driver went on to say:

The respondents have given no evidence of remorse or contrition for the conduct leading to the contraventions.

ABCC Commissioner Stephen McBurney said the CFMMEU’s threats not only jeopardised the timely construction of an important regional hospital extension, but also put the livelihoods of up to 40 local labour hire workers at risk.

“This matter is yet another example of the CFMMEU attempting to use its industrial might to threaten an employer who had some workers that were members of a rival union or were not union members at all,” Mr McBurney said.

“The actions of the CFMMEU threatened the timely completion of an important regional hospital extension, which aimed to deliver a new improved Emergency Department for the people of Coffs Harbour and the surrounding region.

“Mr Rielly and the CFMMEU contested this matter in Court, as is their right. Even after judgment was delivered against them, they have made no apology for their unlawful conduct, they have exhibited no contrition and no remorse. This is a familiar refrain for this particular union in cases brought to Court by my Agency.

“The ABCC stands ready to protect the rights of any union and its workers who may become subject to threats, coercion or “industrial stalking” of the type exhibited in this case.

“This attack on regional workers’ freedom of association was found to be unconscionable and unlawful. It strikes at the very heart of the protections afforded by the Fair Work Act.”