ABCC v CFMEU (Pacific Highway Upgrade Case) (No 3)

The Australian Building and Construction Commission (ABCC) brought proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) in the Federal Circuit and Family Court of Australia, contesting the union's alleged contravention of the Fair Work Act 2009. Specifically, the ABCC argued that two union officials, Mr Rielly and Mr Fitzpatrick, had obstructed or hindered the work of employees at a construction site. The CFMEU contested the allegations, arguing that their officials were exercising their lawful rights under the Act. The court had to determine whether the union officials had indeed obstructed or hindered the work of employees and, if so, whether the CFMEU was vicariously liable for their actions.

The legal issues before the court included whether the union officials' actions constituted a contravention of the Act and whether the CFMEU could be held accessorily liable for the actions of its officials. The court had to consider the evidence presented by the ABCC, including witness testimonies, and determine whether the union officials' actions met the criteria for obstruction or hindrance as defined by the Act. Furthermore, the court needed to assess if the CFMEU's vicarious liability could be established under the principles set out in previous case law.

The court found that the union officials' actions did constitute a contravention of the Act. It held that the officials' conduct, which included recruiting persons and holding discussions with workers without proper coordination with the site management, hindered the work of employees. The court noted that the actions were part of a continuum of events that collectively obstructed or hindered the work. The court also held that the CFMEU could be held accessorily liable for the actions of its officials, based on the principles established in previous cases. The court found that the officials' actions were sufficiently linked to the union's operations to attribute liability to the CFMEU.

The court ordered the CFMEU to pay a penalty of $60,000 for the contravention of the Fair Work Act 2009 by its officials. This decision underscored the importance of compliance with workplace regulations and the potential consequences for unions found to be in breach of the Act.