TWO construction union officials contravened the Fair Work Act after failing to produce their right of entry permit to the project manager at the Ulumbarra Theatre building site in 2014, a court has ruled.
The Federal Court last week found that CFMEU organiser Nigel Davies and health and safety officer Alex Tadic committed the breaches while attempting to inspect scaffolding in the theatre construction site.
Mr Davies attended the site on July 22, 2014, after he was invited by the health and safety representative to inspect allegedly incomplete scaffolding which was being used by workers. The scaffolding allegedly had not been signed off by a licensed person.
Mr Davies did not provide an entry notice, did not present himself to the site office and did not sign a visitors book.
When asked to produce an entry permit by the project manager, Mr Davies told him to “f--- off” and took a number of photographs of the scaffold. He produced the permit to police when they arrived at the scene.
On July 29, Mr Davies visited the site with Mr Tadic to further inspect the scaffolding. Again, they did not show right of entry permits to the project manager and police were called.
The two men returned on August 1 and went to the fly tower where they observed alleged poor lighting for workers.
Mr Tadic used expletives and told the project manager he was “not dealing with a f---ing pen pusher” when approached. The project manager told the court he was “shaken” by the incident.
Federal Court Justice Richard Tracey found Mr Davies “could easily have” produced the right of entry permit when requested.
“He had determined that he would not acknowledge any attempt by site management to exercise some lawful control over his movements,” the judgement reads.
“He had determined that he would not comply with any request by site management to produce his entry permit.
“He had the permit in his possession and later showed it to police officers.”
The CFMEU was found liable for the breaches.
The penalty will be determined at the next hearing in the Federal Court on March 26.
The action was brought to court by the building industry regulator, Fair Work Building and Construction.
CFMEU loses Castlemaine Police Station case
It was the second time in the space of three weeks the Federal Court found the CFMEU in breach of the Fair Work Act for incidents in central Victoria.
The director of the Fair Work Building Industry Inspectorate appealed a Federal Court ruling from March last year that Mr Tadic had not acted improperly on the building site of the Castlemaine Police Station.
Three justices of the Federal Court upheld the appeal on February 12.
The court heard CFMEU health and safety officer Alex Tadic visited the Castlemaine Police Station site on June 13, 2014, believing the site was unsafe.
A WorkSafe inspector arrived and told Mr Tadic to limit his questions and comments until the end of the inspection, but Mr Tadic made several complaints during the inspection.
He also described the inspector as “pathetic”, “the worst inspector he had seen”, that he was favouring the builder and that the site should be shut down.
The court heard there were a “number of serious safety problems at the site” and Mr Tadic believed the inspector was not responding appropriately to the safety issues.
But the Federal Court found, on appeal, that Mr Tadic had acted improperly due to his “liberal use of swear words”.
“The question of whether his language fairly reflected his passionate opinions is a consideration that may bear on the penalty that might be imposed for the contravention, but it does not bear on the objective assessment of whether he acted in an improper manner,” the judgement reads.
Penalties will be determined at a later date.