Cozadinos v CFMEU - [2008] FMCA 1591

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COZADINOS v CFMEU & ANOR

[2008] FMCA 1591

INDUSTRIAL LAW – Alleged contraventions of Building and Construction Industry Improvement Act and Workplace Relations Act – contravention established – declaration made.

Building and Construction Industry Improvement Act 2005, ss.4, 36, 37, 38, 69, 69(3)
Workplace Relations Act 1996, ss.420, 494, 826(2)

Hadgkiss v Construction, Forestry, Mining and Energy Union (CFMEU) [2008] FCAFC 22

Applicant:

MICHELLE COZADINOS

First Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent:

CRAIG JOHNSTON

File Number:

MLG 372 of 2008

Judgment of:

Burchardt FM

Hearing dates:

6, 20 and 21 October 2008

Date of Last Submission:

21 October 2008

Delivered at:

Melbourne

Delivered on:

10 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr P. O'Grady

Solicitors for the Applicant:

Minter Ellison

Counsel for the Respondents:

Mr E. White

Solicitors for the Respondents:

Slater & Gordon

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 372 of 2008

MICHELLE COZADINOS

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

CRAIG JOHNSTON

Second Respondent

REASONS FOR JUDGMENT

Mark Dubberley is a truck driver. At about 1.00 pm on 19 March 2007, he went to the Geelong campus of Deakin University at Waurn Ponds to deliver a load of building materials.
Mr Dubberley was not able to deliver his materials and had, after a time, to leave and do other work. He returned later that afternoon and successfully delivered the materials.
The Applicant says that Mr Dubberley was prevented from unloading by Craig Johnston, who the Applicant says told a forklift driver, Trevor Grenfell, not to unload the forklift and because further, Mr Johnston removed the key to the forklift.
Mr Johnston says that he did not tell Mr Grenfell not to unload Mr Dubberley's truck and that further, the keys to the forklift were missing and could not be found.
I do not believe Mr Johnston. I have concluded, for the reasons that follow, that he did indeed instruct Mr Grenfell not to unload the truck and that the keys were not missing. Mr Johnston removed them and retained them.
I have concluded that Mr Johnston and the Construction, Forestry, Mining and Energy Union (“CFMEU”) contravened both s.36 of the Building and Construction Industry Improvement Act 2005 (“the BCII Act”) and s.494 of the Workplace Relations Act 1996 (“the WR Act”) because of the conduct to which I have just referred.
The issues that fall to be determined in this proceeding are:
a)various formal matters, a number of which are either admitted or not the subject of any serious dispute;
b)determining the facts that give rise to the factual conclusions already expressed; and
c)whether the facts as found give rise to the contraventions of the BCII Act and the WR Act that are alleged.

Formal matters

The Applicant's standing to bring the proceeding is not admitted by the Respondents. I am satisfied:
a)that the Applicant was appointed as an Australian Building and Construction Inspector pursuant to the BCII Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cozadinos v CFMEU

Details

AGLC: Cozadinos v CFMEU [2008] FMCA 1591
Case: [2008] FMCA 1591
Decision Date: 10 December 2008

CaseChat Overview and Summary

Michelle Cozadinos, an Australian Building and Construction Inspector, brought a case against the Construction, Forestry, Mining and Energy Union (CFMEU) and Craig Johnston, a member of the CFMEU, for alleged contraventions of the Building and Construction Industry Improvement Act 2005 and the Workplace Relations Act 1996. The case revolves around an incident where Mark Dubberley, a truck driver, was prevented from unloading his truck at the Geelong campus of Deakin University by Craig Johnston. The key legal issues in this case were the Applicant's standing to bring the proceeding, the facts that give rise to the factual conclusions, and whether the facts as found give rise to the contraventions of the BCII Act and the WR Act that are alleged.

The Federal Magistrate, Burchardt FM, concluded that the Applicant had the standing to bring the proceeding as she was appointed as an Australian Building and Construction Inspector pursuant to the BCII Act. The Respondents conceded that the CFMEU and Craig Johnston met the criteria to be considered as a registered organisation, body corporate, and parties to the Wycombe Constructions Pty Ltd and CFMEU Building and Construction Industry Agreement 2005-2008.

Regarding the facts of the case, the Court accepted the evidence of Mr. Dubberley and Mr. Gordon, which was consistent with their earlier statements given to the Applicant. The Court found that Craig Johnston instructed Mr. Grenfell not to unload the truck and that Johnston removed the keys to the forklift, despite his denial. The Court found that Mr. Johnston's and the CFMEU's actions constituted unlawful industrial action under the BCII Act and contravened the WR Act.

In conclusion, the Court found that Craig Johnston and the CFMEU contravened both the Building and Construction Industry Improvement Act and the Workplace Relations Act due to the conduct that occurred during the incident at Deakin University. The Court ordered that the parties prepare declarations giving effect to these reasons for judgment and listed the matter for further hearing to determine what, if any, other orders should flow from these findings.

Orders