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Cruse v Construction, Forestry, Mining and Energy Union

Cruse v Construction, Forestry, Mining and Energy Union

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

CRUSE v CFMEU & ANOR

[2009] FMCA 236

INDUSTRIAL LAW – Stoppage of work during working hours – employees would lose 4 hours pay – therefore they walked off the site – organiser knew this was likely to happen – breach of BCII Act deliberate or likely – intended to cause maximum disruption.

PENALTIES – Assessment – discount for early admissions – no financial loss or delay in project detailed – discount as not “most serious” breach.

PENALTY – Organiser – breach of BCII Act deliberate or likely – suspension of penalty.

Building and Construction Industry Improvement Act 2005, ss.39, 69
Workplace Relations Act 1996, s.719
Commonwealth Crimes Act 1914, s.4AA

Australian Ophthalmic Supplies Ltd v McAlary-Smith [2008] FCAFC 8
Kelly v Fitzpatrick [2007] FCA 1080
Stuart Mahoney v CFMEU [2008] FCA 1426
Australian Building and Construction Commission [2007] AIRC 717
Temple v Powell [2008] FCA 714
Alfred v Walter Construction Group Limited [2005] FCA 497
Cruse v Multiplex Limited [2008] FCAFC 179
Veen v The Queen (1987) 164 CLR 465
Ponzio v B & P Caelli Constructions Pty Ltd[2007] FCAFC 65
Stuart v L.U. Simon Builders Pty Ltd [2009] FCA 107
AIG v AFMEPKIU & Ors [2001] FCA 774

Applicant:

WARREN CRUSE

First Respondent:

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Second Respondent:

ADRIAN MCLOUGHLIN

File Number:

MLG 479 of 2008

Judgment of:

Turner FM

Hearing date:

13 February 2009

Date of Last Submission:

13 February 2009

Delivered at:

Melbourne

Delivered on:

9 April 2009

REPRESENTATION

Counsel for the Applicant:

Mr O’Grady

Solicitors for the Applicant:

Lander & Rogers

Counsel for the Respondents:

Mr Dowling

Solicitors for the Respondents:

CFMEU

ORDERS

The first respondent, the CFMEU is to pay the amount of $27,500 into the Consolidated Revenue Fund on or before 30 April 2009.
The second respondent, Adrian McLoughlin is to pay $11,000.

The Court will suspend the payment of half that penalty in the amount of $5,500 until 1 May 2011. The second respondent, is not obliged to pay the suspended amount of $5,500 if, between the date of this judgment and 1 May 2011 (both exclusive), he is not adjudged to have breached a provision of the Building and Construction Industry Improvement Act 2005. The second respondent is to pay the non suspended amount of $5,500 into Consolidated Revenue Fund on or before 30 April 2009.
In default of payment by either respondent, the District Registrar must apply to this Court for directions covering the enforcement of the order.
The Court declares that the second respondent, Adrian McLoughlin contravened s.38 of the Building and Construction Industry Improvement Act 2005 by engaging in unlawful industrial action constituted by attendance at an unauthorised site meeting, and subsequent failure or refusal by the employees to return to work, by employees engaged to perform work at the Yarra Arts Site, Southbank Boulevard, Melbourne on 25 September 2006.
The Court declares that the second respondent, Adrian McLoughlin contravened each of the relevant disputes…

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: [2009] FMCA 236
Decision Date: 9 April 2009

CaseChat Overview and Summary

In the matter of Cruse v Construction, Forestry, Mining and Energy Union, the primary dispute revolved around an instance of industrial action taken by employees during working hours, which resulted in a loss of four hours of pay. Consequently, the employees walked off the site. The organiser of the action was aware that such a result was likely. The crux of the case was whether the breach of the Building and Construction Industry Improvement Act 2005 (BCII Act) was deliberate or likely to have been intended to cause maximum disruption.

The court was tasked with determining whether the actions of the Construction, Forestry, Mining and Energy Union (CFMEU) and Adrian McLoughlin, an organiser, constituted a breach of the BCII Act. Specifically, the court had to decide if their actions were deliberate or likely intended to cause maximum disruption, and if so, whether the penalties imposed were appropriate. The court also needed to assess if a discount for early admission was justified in this case, given that no financial loss or delay in the project was detailed.

The court found that McLoughlin and the CFMEU had indeed contravened the BCII Act by engaging in unlawful industrial action. However, in assessing the penalties, the court applied a discount for the early admission of the breach, deeming it not to be the most serious breach. The court also suspended half of McLoughlin’s penalty on the condition that he did not breach the Act again by a specified date. The court ordered the CFMEU to pay $27,500 and McLoughlin to pay $11,000, with half of McLoughlin’s penalty being suspended. The court further declared the contraventions of the relevant dispute clauses by both the CFMEU and McLoughlin.

Orders

Orders of the court

The first respondent, the CFMEU is to pay the amount of $27,500 into the Consolidated Revenue Fund on or before 30 April 2009.

The second respondent, Adrian McLoughlin is to pay $11,000.

The Court will suspend the payment of half that penalty in the amount of $5,500 until 1 May 2011. The second respondent, is not obliged to pay the suspended amount of $5,500 if, between the date of this judgment and 1 May 2011 (both exclusive), he is not adjudged to have breached a provision of the Building and Construction Industry Improvement Act 2005. The second respondent is to pay the non suspended amount of $5,500 into Consolidated Revenue Fund on or before 30 April 2009.

In default of payment by either respondent, the District Registrar must apply to this Court for directions covering the enforcement of the order.

The Court declares that the second respondent, Adrian McLoughlin contravened s.38 of the Building and Construction Industry Improvement Act 2005 by engaging in unlawful industrial action constituted by attendance at an unauthorised site meeting, and subsequent failure or refusal by the employees to return to work, by employees engaged to perform work at the Yarra Arts Site, Southbank Boulevard, Melbourne on 25 September 2006.

The Court declares that the second respondent, Adrian McLoughlin contravened each of the relevant disputes clauses in that:

(a) he did not follow the steps detailed in the disputes clauses; and

(b) work did not continue as normal, or without interruption, while the disputed clauses were followed.

The Court declares that the first respondent, the CFMEU contravened s.38 of the Building and Construction Industry Improvement Act 2005 by engaging in unlawful industrial action constituted by attendance at an unauthorised site meeting, and subsequent failure or refusal by the employees to return to work, by employees engaged to perform work at the Yarra Arts Site, Southbank Boulevard, Melbourne on 25 September 2006.

The Court declares that the first respondent, the CFMEU contravened each of the relevant dispute clauses in that:

(a) it did not follow the steps detailed in the clauses; and

(b) work did not continue as normal, or without interruption, while the dispute clauses were followed.

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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