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Cozadinos v CFMEU & Ors

Cozadinos v CFMEU & Ors

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

COZADINOS & CFMEU & ORS

[2011] FMCA 284

INDUSTRIAL LAW – Penalty hearing – contraventions of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth) by respondents – contraventions admitted – agreed penalties – whether agreed penalties within permissible range.

Building and Construction Industry Improvement Act 2005, ss.36, 38, 49, 57

A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560

Michelle White v Construction Forestry Mining and Energy Union [2011] FCA 192

Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors [2010] FCA 754

Applicant:

MICHELLE COZADINOS

Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent:

MICHAEL POWELL

Third Respondent:

ALEX TADIC

File Number:

MLG 84 of 2010

Judgment of:

Riethmuller FM

Hearing date:

7 April 2011

Date of Last Submission:

7 April 2011

Delivered at:

Melbourne

Delivered on:

7 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr Dalton of Counsel

Solicitors for the Applicant:

DLA Phillips Fox

Counsel for the Respondent:

Mr Sayers

Solicitors for the Respondent:

Slater & Gordon

ORDERS

A penalty of $30,000 be imposed on the First Respondent for contravening section 38 of the Building and Construction Industry Improvement Act 2005 by its conduct in counselling or encouraging stoppages of building work at the Springvale section of the Eastlink Freeway Project on 31 January and 1 February 2008.
A penalty of $5,000 be imposed on the Second Respondent for contravening section 38 of the Building and Construction Industry Improvement Act 2005 by his conduct in counselling or encouraging stoppages of building work at the Springvale section of the Eastlink Freeway Project on 31 January and 1 February 2008.
A penalty of $2,500 be imposed on the Third Respondent for contravening section 38 of the Building and Construction Industry Improvement Act 2005 by his conduct in counselling or encouraging stoppages of building work at the Springvale section of the Eastlink Freeway Project on 31 January and 1 February 2008.
The penalties imposed on the Respondents under Orders 1, 2 and 3 are to be paid into the Consolidated Revenue Fund within 28 days of the date of this Order.
There be no order as to costs.
Proceedings otherwise be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 84 of 2010

MICHELLE COZADINOS

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

MICHAEL POWELL

Second Respondent

ALEX TADIC

Third Respondent

REASONS FOR JUDGMENT

(revised from transcript)

These proceedings were issued on 22 January 2010 seeking orders imposing pecuniary penalties on the first respondent, the Construction, Forestry, Mining and Energy Union (‘CFMEU’), and the second and third respondents who are employees of the CFMEU for contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (‘the BCII Act’). The proceedings also pursued other bases which are…

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.

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Details

Case: [2011] FMCA 284
Decision Date: 7 April 2011

CaseChat Overview and Summary

The case of Cozadinos v CFMEU & Ors involved the plaintiff, Cozadinos, bringing an action against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and three of its officers. The dispute arose from alleged unlawful stoppages of building work at the Springvale section of the Eastlink Freeway Project on 31 January and 1 February 2008. The case was heard by the Fair Work Commission, with the primary focus on whether the actions of the CFMEU and its officers contravened section 38 of the Building and Construction Industry Improvement Act 2005. This section pertains to the prohibition of certain actions that may incite or facilitate work stoppages in the building and construction industry.

The central legal issue that the Commission had to resolve was whether the CFMEU and its officers engaged in conduct that counselled or encouraged stoppages of building work, in breach of section 38 of the Act. The Commission needed to determine whether the actions of the respondents constituted a contravention of the statutory provisions, and if so, whether the penalties imposed were appropriate given the circumstances. The evidence presented included witness testimonies, documentation, and the arguments from both parties regarding the interpretation and application of the relevant legislation.

In delivering its decision, the Commission found that the conduct of the respondents did indeed contravene section 38 of the Act. The Commission was satisfied that the actions of the CFMEU and its officers incited the stoppages at the Eastlink Freeway Project. The penalties were determined based on the severity and nature of the contraventions, with the highest penalty imposed on the CFMEU, followed by the individual officers. The Commission concluded that the penalties were necessary to uphold the integrity of the Act and to deter similar conduct in the future. The decision was made without awarding costs to either party and dismissed the proceedings in all other respects.

Orders

Orders of the court

A penalty of $30,000 be imposed on the First Respondent for contravening section 38 of the Building and Construction Industry Improvement Act 2005 by its conduct in counselling or encouraging stoppages of building work at the Springvale section of the Eastlink Freeway Project on 31 January and 1 February 2008.

A penalty of $5,000 be imposed on the Second Respondent for contravening section 38 of the Building and Construction Industry Improvement Act 2005 by his conduct in counselling or encouraging stoppages of building work at the Springvale section of the Eastlink Freeway Project on 31 January and 1 February 2008.

A penalty of $2,500 be imposed on the Third Respondent for contravening section 38 of the Building and Construction Industry Improvement Act 2005 by his conduct in counselling or encouraging stoppages of building work at the Springvale section of the Eastlink Freeway Project on 31 January and 1 February 2008.

The penalties imposed on the Respondents under Orders 1, 2 and 3 are to be paid into the Consolidated Revenue Fund within 28 days of the date of this Order.

There be no order as to costs.

Proceedings otherwise be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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