Cruse v Construction, Forestry, Mining and Energy Union

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.