CFMEU officials suspended for undue hindrance of concrete pour

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CFMEU officials suspended for undue hindrance of concrete pour

The WA Industrial Relations Commission has ordered a three-month suspension of right of entry permits for two construction union officials who continued to hold up work on a major Perth site after safety issues had been resolved saying the men used the situation to 'pursue some industrial end'.

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The WA Industrial Relations Commission has ordered a three-month suspension of right of entry permits for two construction union officials who continued to hold up work on a major Perth site after safety issues had been resolved saying the men used the situation to 'pursue some industrial end'.

Background

The WA Building Industry and Special Projects Inspectorate applied unders.49J(5) of the Industrial Relations Act, 1979 to revoke the right of entry authority issued to CFMEU assistant secretary Joseph McDonald and organiser Michael Buchan.

The grounds for the application were that, while purporting to exercise the powers of entry conferred under Division 2G of the Act, McDonald and Buchan entered a construction site at the Burswood International Resort Casino and intentionally and unduly hindered an employer or employees during their working time.

The commission heard that the site manager at Burswood was concerned there may be some problems with the first major concrete pour of the construction because he had rejected McDonald’s urgings to employ a particular worker on the site. Consequently, he informed BISPI and the local police force that their services might be required on the morning of the pour.

The concrete pour had been set up to begin prior to sunrise and the site manager installed a CLJ6000 lighting set to illuminate the work. He contended the effect of the artificial light was brighter than daylight and there were no dark areas. The site manager also said there were JSAs (Job Safety Analysis) for all facets of the job. Some were generic in nature, but he said all were satisfactory and achieved the aims for which JSAs were created.

Just before 6am, as the pump was set up and ready to go, McDonald arrived on the site and persuaded the pump operators to delay the operation because of concerns about the inadequacy of the light. They spoke to their director who told them to wait till he got there. He arrived at 6.40am, by which time the sun was up and it was daylight. There was no question that there was sufficient light to do the work. The director checked with McDonald to see if there was any issue other than light, but he did not raise any. In cross examination, McDonald said he had still been concerned about safety problems related to the state of the JSAs.

The concrete had arrived on the site in three agitator trucks at around 6am and there was some urgency to discharge the material as it had to be used within 90 minutes of leaving the plant to remain up to specifications.

McDonald and Buchan then placed themselves between the agitator truck and the hopper making pumping impossible. McDonald pushed the agitator truck’s discharge chute away so that the concrete could not be poured into the pump hopper. The BISPI inspector attempted to mediate, telling the union officials he felt they were in breach of their right of entry and should move because they were unduly hindering work and acting improperly. They refused to move and eventually were escorted off the site by the police.

Findings

Commissioner Gregor noted that McDonald’s contact with the site manager was a continuation of a difficult relationship between the men which had existed since the job started. 'It is open to conclude that both Mr McDonald and [the site manager] are hard men doing to each other what hard men do in a tough industry.' He said, McDonald’s actions in taking the two pump operators away from the job 'had all the hallmarks of improper conduct'.

The commissioner found it was more likely than not that there was sufficient working light for the job to be done at the time scheduled. However, he went on to find that giving the most generous weight to McDonald’s evidence that he believed there was insufficient light, the initial hindrance of taking the pump operators away from the job could be said to be due hindrance on the authority of Curran v Borthwick.

Commissioner Gregor found he was open to conclude that: 'McDonald had opted to use the situation, after the ‘problems’ with the light had evaporated, to pursue some industrial end because he is a very experienced official who would know he was not authorised under the law to hold up the work on the basis that he was dissatisfied with the form of the JSAs that were used on that site.'

The commissioner said the employers on the site had no idea that McDonald and Buchan’s conduct had anything to do with JSAs although JSAs were an issue on the site. He went on to say there was no legal obligation to produce JSAs at all, let alone in a specific form, but in any event there were JSAs available applicable to the work. 'The fact that Mr McDonald may have disagreed with the form of the JSAs is not sufficient to justify stopping the work and in doing so he intentionally and unduly hindered an employer and employees during working hours.'

The commissioner found both union officials had intentionally and unduly hindered the employer and employees on the Burswood site during working hours and in doing so were in breach of the authorisation they had to enter the site and were in breach of s.49J(5) of the Act. He considered that a permanent revocation of their authority would be too harsh a penalty, and instead suspended their authorisation for three months

See: Joseph Lee of the Building Industry and Special Projects Inspectorate v Joseph McDonald and Michael Buchan, 2004 WAIRC 12071, (21 July 2004).

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