Director, Fair Work Building Industry Inspectorate v J Hutchinson Pty Ltd T/A Hutchinson Builders

[2019] FCCA 401

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE v J HUTCHINSON PTY LTD T/A HUTCHINSON BUILDERS & ORS [2019] FCCA 401

Catchwords:
INDUSTRIAL LAW – Commonwealth – Compliance and enforcement – Civil remedies – Pecuniary penalty orders – Assessing penalty – Deterrence

Legislation:

Fair Work Act 2009 (Cth), s.417

Cases cited:

Australian Building and Construction Commission v Christopher & Anor [2012] FMCA 589

Cahill v CFMEU (No.4) (2009) 189 IR 304
Cozadinos v Construction, Forestry, Mining and Energy Union [2013] FCA 1243
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No.2) [2015] FCA 407
Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614
Director, Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432
Williams v Construction, Forestry, Mining and Energy Union & Mates (No.2) [2009] FCA 548

Applicant: DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE

First Respondent: J HUTCHINSON PTY LTD T/A HUTCHINSON BUILDERS

Second Respondent: MICHAEL MYLES

Third Respondent: MARK O’BRIEN

Fourth Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

File Number: BRG 894 of 2014

Judgment of: Judge Jarrett

Hearing date: 9 November 2015

Date of Last Submission: 12 November 2015

Delivered at: Brisbane

Delivered on: 22 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Murdoch

Solicitors for the Applicant: Clayton Utz

Counsel for the Respondents: Mr White

Solicitors for the Respondents: Hall Payne Lawyers

ORDERS

THE COURT DECLARES THAT:

(1)Subsection 417(1) of the Fair Work Act 2009 (Cth) was contravened on 9 December, 2013 by each of the second respondent, the third respondent and the fourth respondent when the second and third respondents organised industrial action at the Arena Apartments construction project, Edmonstone Street South Brisbane.

THE COURT ORDERS THAT:

(2)Pursuant to section 545 of the Fair Work Act 2009 (Cth) the second respondent pay a pecuniary penalty of $5,100;

(3)Pursuant to section 545 of the Fair Work Act 2009 (Cth) the third respondent pay a pecuniary penalty of $5,100;

(4)Pursuant to section 545 of the Fair Work Act 2009 (Cth) the fourth respondent pay a pecuniary penalty of $25,500;

(5)The penalties payable pursuant to orders (2), (3) and (4) hereof be paid within 28 days to the Consolidated Revenue Fund of the Commonwealth.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 894 of 2014

DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE

Applicant

And

J HUTCHINSON PTY LTD T/A HUTCHINSON BUILDERS

First Respondent

MICHAEL MYLES

Second Respondent

MARK O’BRIEN

Third Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Fourth Respondent

REASONS FOR JUDGMENT

1. The applicant seeks declarations of contraventions of the Fair Work Act 2009 (Cth) by the second, third and fourth respondents and the imposition of pecuniary penalties against the respondents arising out of unlawful industrial action taken at the Brisbane Arena Apartments project located at South Brisbane, Queensland on 9 December, 2013.

2. The respondents admit the allegations of contravention against them.  Both the second and third respondents were organisers of the fourth respondent, although soon after the hearing completed, the second respondent ceased to be an organiser and became an employee of the fourth respondent “in a political campaigning role”.

3. The application arises against the following background.

4. In December, 2013 the first respondent was the principal contractor on the Arena Apartments project.  The project consisted of the construction of a multi-storey residential tower containing 191 residential apartments and ground level retail outlets.  The value of the Arena Apartments project was approximately $53 million. 

5. To be considered eligible to perform work for the Queensland Government, a contractor like the first respondent needed to be compliant with the Queensland Government Implementation Guidelines for the Queensland Code of Practice for the Building and Construction Industry.  To demonstrate compliance, the first respondent organised for inspectors or investigators from the Building Construction Compliance Branch of the Queensland Government to audit the first respondent’s compliance with the Code.  Those inspectors were Nathan Wilson and Robert Northey.

6. On 9 December, 2013 Mr Wilson and Mr Northey entered the site at South Brisbane at about 9:40am for the purposes of undertaking an audit relating to compliance by the first respondent with the Code of Practice.  When they entered the site, work was being undertaken by the first respondent through some of its own employees and a number of subcontractors who each had employees working on the site.  On that day there were in place enterprise agreements that covered the first respondent’s construction workers and the workers of the various subcontractors who had employees on site, save for one subcontractor called Planet Plumbing.  Each of the agreements had not passed their nominal expiry dates.

7. When they arrived, Mr Wilson and Mr Northey met with Ms Penny Carter, a labour coordinator for the first respondent, Mr John Berlese, team leader for the first respondent, Andrew Hardy, a contracts administrator for the first respondent and Jay Sessarago, a foreman for the first respondent.  They met at the first respondent’s site office.

8. At a time between 10:30am and 11:00am the second respondent, Mr Myles, entered the site.  He approached employees on the site and told them that they should cease work and go to the lunch room on the site.  At about 11:00am the construction employees’ then onsite (other than four of the first respondent’s employees) stopped work and went to the lunch room where they remained for about 45 minutes.

9. Mr Sessarago and Mr Berlese approached Mr Myles about his presence on the site.  It is not in dispute that he said to them words to the effect “This is what we do if these kinds of people are on the job… our boys in the shed until they leave … end of story”.  Mr Berlese told Mr Myles that Mr Northey and Mr Wilson would be leaving the site within 10 minutes at which point Mr Myles said words to the effect “Well, you tell us when they’re gone and we’ll have our meeting with the boys and tell them what’s going on”.

10. In the meantime, Mr O’Brien, the third respondent had arrived onsite.  Soon after his arrival, Mr Sessarago and Mr Berlese had a conversation with him in which Mr O’Brien said words to the effect “The employees will be in the sheds until the investigators had left the site”.  Subsequently, Mr Myles said to Mr Berlese words to the effect “You’ve got to understand when they come here we’re going to pull everybody off the job”.

11. Mr Northey and Mr Wilson left the site at approximately 11:30am.  After they left the site, for approximately five minutes Mr Myles and Mr O’Brien addressed the employees that had assembled in the lunch room.  The employees returned to their work approximately 15 minutes later at about 11:45am.

12. A meeting then occurred in the site office between Ms Carter, Mr Hardy, Mr Sessarago, Mr Berlese, Mr Myles and Mr O’Brien.  There were others present.  During the discussion, Mr Myles and Mr O’Brien told the first respondent’s representatives “if they step foot on any of your projects, we will be there within 5 minutes flat and we will be stopping the job and that’s a nationwide directive from the top”.  Mr Myles also said to Ms Carter that he had “stopped and pulled the job because the BCCB were onsite”.

13. Mr Myles and Mr O’Brien left the site at approximately 12:30pm. 

14. The parties agree that the employees who ceased work at the direction of Mr Myles and Mr O’Brien did not have the permission of their respective employers to stop work on 9 December, 2013 in the circumstances that I have just recorded.

15. Section 417 of the Fair Work Act provides:

    417 Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.

    No industrial action

    (1)  A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

    (a)  an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or

    (b)  a workplace determination comes into operation until its nominal expiry date has passed;

    whether or not the industrial action relates to a matter dealt with in the agreement or determination.

    Note: This subsection is a civil remedy provision (see Part 4‑1).

    (2)  The persons are:

    (a)  an employer, employee, or employee organisation, who is covered by the agreement or determination; or

    (b)  an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

16. The parties agree that both Mr Myles and Mr O’Brien were officers of an employee organisation that was covered by an enterprise agreement approved by the Fair Work Commission whose nominal expiry dates had not passed. So too, the fourth respondent was a person for the purposes of s.417(2) of the Act because it was an employee organisation covered by each of the enterprise agreements that applied to the employees (other than the Planet Plumbing employees).

17. The second, third and fourth respondents admit that they organised industrial action as that term is defined for the purposes of s.417(1) of the Fair Work Act on 9 December, 2013. Their concession is well made having regard to the evidence set out above.

18. The maximum penalty for the contravention of s.417 of the Act as at 9 December, 2013 was 60 penalty units (a total of $10,200 at the rate of $170 per penalty unit). Corporate entities, such as the fourth respondent, were liable to a penalty of 300 penalty units or $51,000.

19. It is well accepted that the purpose of imposing a pecuniary penalty for contraventions of the Fair Work Act are punishment, deterrence and rehabilitation. Whilst they are the aims, and perhaps the second of those is generally seen as more important than the other two matters, ultimately, the Court is tasked with ensuring that any penalty which is imposed is proportionate to the gravity of the contravening conduct.

20. I accept the applicant’s submission that the respondents’ actions were not motivated by any workplace dispute with respect to the terms and conditions of employment or any safety issues concerning the employees that were asked to suspend their work.  The conduct seems to have been in furtherance of a directive that issued from “the top” of the fourth respondent’s organisation.  The directive was to stop any work on projects merely because of the presence of the state inspectors on the site who were there to undertake certain investigations.  The purpose of their presence was to audit the first respondent’s compliance with the Code I have identified earlier which would ensure the first respondent’s eligibility to perform work for the Queensland Government which, in turn, would provide added security for those in the employ of the first respondent, some of which were members of the fourth respondent.  Moreover, the stoppage in this case seems to have been limited to the period of time in which the inspectors were onsite.  The total length of the stoppage was about 45 minutes and coincided (more or less) with the inspectors leaving the site.  The conduct in which the second and third respondents engaged spanned about one and a half hours.

21. The conduct here was in furtherance of union objectives and policy which, effectively, had nothing to do with the work that was being conducted on this particular building site.  As was remarked by Reithmuller FM (as his Honour then was) in Australian Building and Construction Commission v Christopher & Anor [2012] FMCA 589, the conduct was effectively a civil disobedience action to attempt to thwart the state building inspectors from carrying out their statutory duties. As the applicant submits, the conduct was a direct challenge to the first respondent because it had invited the investigators onto the site to undertake the audit of the first respondents’ compliance with the Code. The second, third and fourth respondent’s conduct is serious.

22. There is evidence that the respondents’ conduct interfered with the first respondent’s right to the benefit of building and construction work on the project on the relevant period of the stoppage (albeit 45 minutes).  It also interfered with the legitimate role of the BCCB in carrying out its functions.  However, there is no evidence of any particular loss or damage to any party.

23. Specific deterrence looms large in these proceedings.  Each of the respondents has an unenviable record of contravening industrial legislation.  The details of previous matters in which the fourth respondent has been dealt with for contravening industrial provisions was conveniently summarised by the applicant in his written submissions.  I have included that summary as Annexure A to these reasons.  Those earlier matters are relevant in two ways as explained by White J in Director, Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 where his Honour said:

    [78]  In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160, I referred to several of the authorities bearing upon the significance of prior contraventions. It is not necessary to repeat now what I said then, other than to note the explanation by King CJ in R v McInerney (1986) 42 SASR 111 at 113:

    … Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner’s record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record … The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.

    These principles are applicable in the present case.

24. I have also taken into account, and applied, the approach set out by Kenny J in Cahill v CFMEU (No.4) (2009) 189 IR 304. Her Honour examined a schedule of prior contraventions and noted at [65] the need to be conscious of the nature and circumstances of each prior contravention and stated:

    In summary, the history referred to above shows that the Union, through its representatives at various levels around the country, has a history of engaging in coercive conduct relevantly similar to the kind in question in this case. I would not, however, accord equal weight to all parts of this history, especially having regard to the fact that not all elements of this history are to be treated as prior contraventions and many elements relate to events outside Victoria and also at a level that might be thought more indicative of local than national concern. Further, as the respondents submitted, it must be borne in mind that, from 1999 to date, the Union, whether or not considered from the relevant divisional perspective, had a considerable spread of activities – from large to small – all over the country. 

25. Notwithstanding that approach, it is clear that the fourth respondent has an abysmal history of non-compliance with industrial laws.  So much had been recorded on numerous occasions now in decisions such as Williams v Construction, Forestry, Mining and Energy Union & Mates (No.2) [2009] FCA 548 at [29]; Cozadinos v Construction, Forestry, Mining and Energy Union [2013] FCA 1243; Director, Fair Work Building Industry Inspectorate v Stephenson (above) at [76]-[77]; Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No.2) [2015] FCA 407 at [106]; Director, Fair Work Building Industry Inspectorate v Cradden [2015] FCA 614 at [21].

26. There is no doubt that the fourth respondent is a large, prominent and influential national union.  It is not suggested that it has no capacity to pay a substantial pecuniary penalty.

27. The conduct in these proceedings was plainly deliberate and was aimed at preventing or hindering the inspectors from the BCCB from conducting their work. I accept the applicant’s submission that Mr O’Brien and Mr Myles must have been aware of the potential legal consequences of their conduct and, by reason of their positions with the fourth respondent, were able to take legal advice as to the consequences of their conduct. Their involvement in proceedings arising out of contraventions of the Fair Work Act bespeak their knowledge about these matters.

28. General deterrence, of course, is also of importance in this case.  The fourth respondent is not the only union that operates in this country and the second and third respondents are not the only union officials.  It is important to send, and to continue to send to organisations such as the fourth respondent and officers occupying positions such as those occupied by the second and third respondents here a very clear message that breaches of industrial laws will be met with the imposition of penalties designed to deter generally a repetition of the offending conduct.

29. The conduct is, I accept, serious having regard to the nature of the actions undertaken by the second and third respondents and the reasons for that action.  It was an attempt to thwart officers from the BCCB from carrying out their duties and it was a form of protest against the first respondent’s conduct in inviting the BCCB to conduct the audit.

30. However, by the filing of their second further amended defence the respondents have admitted the allegations against them and they are entitled to some credit for those admissions.  The admissions save the expense of a trial thereby saving costs to both the applicant and, more generally, the public.  Each of the individual respondents initially had invoked their privilege against exposure to a penalty but they have now foregone their right, no doubt recognising the inevitability of a finding against them.  I do not accept that the admissions by the respondents indicate any contrition on their part.

31. The fourth respondent is liable for each contravention committed by the second and third respondents.  It is liable, therefor to a penalty in respect of each.  The fourth respondent submits that “its liability, arising as it does out of the conduct of the second and third respondents is properly characterised as circumstances in which, as a matter of discretion, the Court is able to take into account that the circumstances of the acts and omissions of the second and third respondents were contemporaneous and resulted in the same breach of the Act insofar as there was a stoppage of work of 1½ hours. In those circumstances the fourth respondent submits that the Court is able to impose a lesser penalty or even no penalty in respect of one of the breaches while recognising that one or the other of the breaches might be penalised in accordance with the principles set out above”. 

32. The applicant in oral submissions acknowledged that there was some force in that submission and eschewed an approach which saw the Court impose a penalty on the fourth respondent as if there were two separate and discrete contraventions.  The applicant submitted that, given that the offending conduct on 9 December, 2013 appears to have been in effect, a joint enterprise on the part of the second and third respondents, the imposition of a penalty upon the fourth respondent ought to take that into account. 

1. I accept those submissions.  The fourth respondent should not be punished for the same offending conduct more than once.  It is appropriate to impose a penalty in respect of the fourth respondent’s liability for Mr Myles’s contravention and none in respect of that for Mr O’Brien’s contravention.

2. In my view, a penalty of 50% of the maximum, or $5,100.00 is appropriate for Mr Myles.  A penalty of $5,100.00 is also appropriate for Mr O’Brien. A penalty of 50% of the maximum, or $25,500 is appropriate for the fourth respondent.  Even though the period over which the respondents’ actions took place was only approximately an hour and half, and even though the stoppage was only for about 45 minutes, the reason for the action taken by the second, third and fourth respondents increases considerably the objective seriousness of their conduct.

3. I will make declarations and orders accordingly.

   I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 22 February, 2019.

   Date: 22 February, 2019

   Annexure A

REF NO	CASE NAME AND CITATION	JURISDICTION AND JUDGE	DATES OF RELEVANT CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT ON LIABILITY & PENALTY	PENALTY IMPOSED & NUMBER OF CONTRAVENTIONS
1	Brookfield Multiplex FSH Contractor Pty Ltd v McDonald [2014] FCA 359	Federal Court – Perth North J	15 and 16 February 2013	CFMEU officials Mr Joseph McDonald and Graham Pallott attended the Fiona Stanley Hospital construction site and addressed a meeting of 400 workers. The purpose of the meeting was to discuss a demand that the company pay 24/7 cover for an injured worker. As a result, the workforce did not attend work at the site on 15 and 16 February 2013	·   Statement of Agreed Facts & Penalties ·   Penalty decision on 11 March 2014	$61,000 comprising: · $9,500 against McDonald for 1 contravention of s.348 of the FW Act and 1 contravention of s.417 of the FW Act · $3,500 against Pallott for 1 contravention of s.348 of the FW Act and 1 contravention of s.417 of the FW Act · $48,000 against the CFMEU for a contravention of s.348 of the FW Act and 1 contravention of s.417 of the FW Act $250,000 in compensation
2	Director, Fair Work Building Industry Inspectorate v Joseph McDonald & Ors [2013] FCA 1431	Federal Court – Perth Barker J	21 February 2012	CFMEU and CFMEUW Joseph McDonald organised unlawful industrial action on the Citic Pacific Sino Iron Ore Mine Site on 21 February 2012.  Joseph McDonald asked for a show of hands of who would go on strike for the day in support.  A majority of workers raised their hands.  48 CIA employees and 29 PCM employees went on strike. McDonald admitted contraventions s.38 of the BCII Act by reason of organising the stoppage, and subsequently procuring workers to leave site for the day because their pay would be docked 4 hours in any event.	·   Agreed statements of facts and penalties ·   Penalty decision on 20 December 2013	Penalties of $193,600 comprising: ·   $17,600 against McDonald (for 2 contraventions of s.38 of the BCII Act) ·   $88,000 against the CFMEU (for 2 contraventions of s.38 of the BCII Act) ·   $88,000 against the CMFEUW (for 2 contraventions of s.38 of the BCII Act)
3.	Director of the Fair Work Building Industry Inspectorate v McQueen, Bragdn, Hanna, Treadaway, Clark, Bland, CFMEU and BLFQ BRG493/2012 [2013] FCCA 2130	Federal Circuit Court – Brisbane Judge Burnett	19 and 20 November 2010	The Director issued proceedings against the CFMEU, BLFQ and six union officials for allegedly engaging in unlawful industrial action at three Laing O'Rourke sites in Queensland during 2010 19th November 2010 - Messrs Clark and Bland entered the site, a building work at the Multi-Level Car Park Site. They convened an unauthorised meeting. They encouraged the 86 employees to take strike action and the employees left work, not performing any further work on the 19th of November. 75 of the employees continued with withhold labour for the whole of the 20th of November. This also occurred at the Albert Street Site, with 20 employees. 15 employees continued to withhold their labour for the whole of 20th of November. This also occurred at the Brisbane Convention and Entertainment Centre site with 42 employees.	·   Penalty Orders given on 10 October 2013	Penalties of $55,000. CFMEU and BLFQ were held to be jointly and severally liable for the pecuniary penalty (for 1 contravention each of s.38 of the BCII Act)
4	Director of the Fair Work Building Industry Inspectorate v CFMEU & Beattle [2013] FCA 981	Federal Court – Melbourne Jessup J	8, 9 and 13 July 2010	Cockram Constructions was a building contractor at the Austin Hospital sit, Heidelberg Victoria.  A subcontractor, GI, dispatched two employees to perform work at the site.  A dispute arose between GI and the CFMEU concerning the applicability of an enterprise agreement to the GI employees. Bill Beattie (the second respondent) was a delegate of the CFMEU and met with the two GI employees and directed them to not perform any work on the site. They did not work on the 8th or 9th of July	·   3 October 2013	$15,000 comprising: · $12,500 against the CFMEU (for 1 contravention of s.417 of the FW Act) · $2,500 against Bill Beattie (for 1 contravention of s.417 of the FW Act)
5	Director of Fair Work Building Industry Inspectorate v CFMEU, CFMEUW and McDonald [2013] FCCA 1255	Federal Circuit Court - Perth Judge Lucev	12 September 2008	Mirvac Constructions (WA) Pty Ltd was engaged to undertake building work at ‘The Peninsula Project’ in Burswood, WA. On 12 September 2008 CFMEU and CFMEUW representative, Joseph McDonald attended the Peninsula Project and addressed a meeting of Mirvac employees. The meeting was adjourned and reconvened. Approximately 100 workers then left the site and failed to perform work that they were engaged to perform for the remainder of the day. Joseph McDonald's role in the stoppage was unlawful industrial action in breach of the WR Act 1996.	·   4 September 2013	One contravention by each Respondent of s.494(1) of the WR Act: $7,260 comprising: ·   $3,300.00 against the CFMEU ·   $3,300.00 against the CFMEUW ·   $660.00 against McDonald
6	Director, Fair Work Building Industry Inspectorate v Sutherland, Jarvis, O’Doherty, Pearson, Lynch, BLF, CFMEU & CEPU No Decision attached; Order viewable per BRG1008/2011	Federal Circuit Court - Brisbane Judge Burnett	28 February and 1 March 2011	Brookfield Multiplex Constructions Ply Ltd was the project manager for building work associated with the Gold Coast Hilton hotel (Surfers Paradise) and Wintergarden shopping precinct (Brisbane). On 28 February 2011, Mr Sutherland and Mr Jarvis entered the Gold Coast site and held a meeting with workers engaged in building work. At the end of the meeting 37 workers stopped work and left the Gold Coast Site for 48 hours. A similar stoppage occurred at the Wintergarden site. At the end of the meeting around 65 building works stopped work and left the site for the rest of the day. They returned the next day, Tuesday 1st of March.	·   Orders by consent given on 10 July 2013	Penalties of $65,000 comprising: ·   $50,000 against the CFMEU for 2 contraventions of s.38 of the BCII Act ·   $15,000 against the CEPU for 1 s.38 contravention
7	Land Lease Project Management Construction (Australia) Pty Ltd v CFMEU) [2012) FCA 1144 Regarding Injunction [2012] FCA 1273	Federal Court	28 February 2011 to 26 May 2011	The CFMEU, CEPU and officials engaged in unlawful industrial action and defied orders made by Fair Work Australia, contravened right of entry provisions and engaged in work stoppages at a Brisbane and Gold Coast construction site at various dates between 28 February 2011 and 26 May 2011.	·   Penalty decision 19 October 2012 ·   Judgment on Injunctions on 16 November 2012	$590,000 comprising: ·   A penalty of $550,000 on the CFMEU and CEPU (jointly and severally liable) payable to Lend Lease (for 1x CEPU contravention of s.38 of the BCII Act and 12 CFMEU contraventions of s.38) ·   A penalty of $7,750 on the sixth respondent (Hanna) - (for 6 contraventions of s.38) ·   A penalty of $6,450 on the seventh respondent (Jarvis) - (for 4 contraventions of s.38) ·   A penalty of $6,450 on the eighth respondent (Olsen) - (for 2 contraventions of s.38) ·   A penalty of $2,150 on the ninth respondent (Malone) - (for 1 contravention of s.38)
8	ABCC v CFMEU & Hudson [2012] FMCA 916	Federal Magistrates Court - Melbourne Riley FM	13 March 2009	Hudson, an officer of the CFMEU, and the CFMEU encouraged workers to take strike action at the Rosso Apartment project in Carlton. A meeting took place on 13 March. After the meeting 22 of the workers took strike action by not performing any further work that day. Hudson's industrial motivation was to disrupt the performance of work at the Carlton site by encouraging the workers to take industrial action	·   Penalty judgment 8 October 2012	$25,000 comprising of: ·   $7,500 imposed on Hudson for one contravention of s.38 of the BCII Act ·   $17,500 imposed on the CFMEU for one contravention of s.38 of the BCII Act by reason of vicarious liability for the conduct of Hudson
9	Director of the Fair Work Building Industry Inspectorate v CFMEU, McDonald & Buchan [20121 FCA 966	Federal Court - Perth Buchanan J	2 February 2011, 10 June 2011, 23 June 2011,27 June 2011 and 4 July 2011	Joseph McDonald entered Diploma’s Queens Riverside Apartments site with other CFMEU organisers and directed the Inner Strength workers to go on strike on 2 February 2011. On 10 June 2011, he organised a meeting at the site which caused workers to fail to attend work between 7:30am and 7:40am. He also organised and engaged in a blockade on the site on 23 June 2011, and made a threat to Diploma’s managing director on 27 June 2011 to continue stoppages. Joseph McDonald entered the site on 4 July 2011 and arranged for workers to attend a picket on the site.	·   Agreed statement of facts and agreed penalties ·   Penalty decision 4 September 2012	$200,000 against CFMEU and McDonald, comprising of: ·   CFMEU: $40,000 (for 2 contraventions of s.44 BCII Act) ·   Mr McDonald:$10,000 (for 2 contraventions of s.44 BCII Act) ·   CFMEU: two contempts of court - totalling $100,000 ·   McDonald: two contempts of court - totalling $50,000
10	Australian Building and Construction Commissioner v Christopher & Anor [2012] FMCA 589	Federal Magistrates Court Reithmuller FM	18 March 2010	On 18 March 2010 Derek Christopher (first respondent) entered the site and conducted a meeting and told the employees it was the union policy to stop work while the ABCC was on site. The ABC inspectors were on site for a pre-arranged appointment that went from 7:10 - 9:15. •   Christopher spoke to the employers and was told the workers would have the minimum 4 hours pay docked. Christopher responded “you know what that’ll mean” and at 9:30 am Christopher told the employers the workers would not be returning to work that day. All the workers (excluding the plumbing contractors) left the site. There were approximately 100 workers	·   Agreed statement of facts and penalty ·   3 May 2012	$20,000 against the CFMEU for a contravention of s.38 of the BCII Act
11	ABCC v CFMEU and Reardon [2012] FCA 189 (penalty decision)	Federal Court Bromberg J	20 November 2008	At a Bovis Lend Lease Caroline Springs site, CFMEU official Reardon directed 50-55 employees of 6 subcontractors not to perform work that day or for the next two days in the context of a broader industrial dispute between the CFMEU and Bovis about a Blue Glue security system on Bovis sites.	·   Agreed statement of facts in place and agreed penalties proposed ·   Penalty decision 6 March 2012	$50,000 against the CFMEU (for 1 contravention of s.38 BCII Act)
12	ABCC v Jarvis, Temoho and CFMEU (Hogan v Jarvis & Ors) [2012] FMCA 189	Federal Magistrates Court Burnett FM	26-30 November 2009	On the 26th November 2009, three CFMEU organisers entered the Gold Coast University Hospital site and held a mass meeting of workers of 109 site subcontractors.  At the meeting workers voted to stop work until Monday 30 November 2009. The workers were schedule to perform work on the 26th and 27th of November.  On these two days approximately 200 workers stopped work.  The reason was that they asserted BLL had withheld entitlements from workers of another subcontractor on other sites.	·   Agreed statement of facts in place and agreed penalties proposed ·   Penalty decision 7 February 2012	$46,860 comprising: ·   $36,300 and declarations against CFMEU (for 1 contravention of s.38 of the BCII Act) ·   $7,260 and declarations against Jarvis (for 1 contravention of s.38 of the BCII Act) ·   $3,300 and declarations against Temoho (for 1 contravention of s.38 of the BCII Act)
13	ABCC v CFMEU and McDonald (No 2) [2011] FCA 1518	Federal Court Barker J	16 January 2009 2 February 2009 24 June 2009 20-21 August 2009	On 15 January 2009 at a Perth CBD site, Joseph McDonald banned a concrete pour the next day which was forecast to be 40 degrees. The pour did not proceed though arrangements had been made for safe pouring. On 2 February 2009, Joseph McDonald prevented employees from completing inductions and working that evening because Ridgebay did not have a current CFMEU EBA. On 24 June 2009, employees were working undercover on a day with intermittent rain & high wind. Joseph McDonald told Ridgebay the whole project was inclement, called meeting and encouraged employees not to resume work. They left around 10:15 am for the day. On 20 August 2009, a toilet pipe broke & leaked.  Though other amenities were available, Joseph McDonald told the builder there were no amenities on site and labour should not be on site. He told workers at a meeting not to resume work. Most did not work the rest of the day and 21 August 2009.a	·   Agreed statement of facts in place and agreed penalties proposed ·   Penalty decision	$231,000 comprising: ·   $154,000 and declarations against the CFMEU (for 4 contraventions of s.38 BCII Act) ·   $38,500 and declarations against the CFMEU (for 1 contravention of s.44 BCII Act) ·   $30,800 and declarations against McDonald (for 4 contraventions of s.38 BCII Act) ·   $7,700 and declarations against McDonald (for 1 contravention of s.44 BCII Act)
14	Cozadinos v CFMEU [2011] FMCA 284	Federal Magistrates Court Reithmuller FM	31 January 2008	An issue had arisen between the workers and the employer with respect to the state of the amenities available to the workers.  This included the quality and cleanliness of toilets, sheds, locations to eat. On the 31st of January and 1st of February 2008 CFMEU organisers Michael Powell and Alex Tadic counselled and encouraged stoppages of building work at the Springvale section of the Eastlink Freeway Project. On the 31st January, following the meeting 23 of the TJH employees and employees of subcontractors ceased to perform any building work that day. The workers returned the next day. At 6:20 am the next day (1st of February) Mr Powell and Tadic returned and held meetings to encouraged them to cease work - 23 workers left.	·   7 April 2011	$37,500 comprising: ·   $30,000 against CFMEU (for 1 contravention of s.38 of the BCII Act) ·   $5,000 against Powell (for 1 contravention of s.38 of the BCII Act) ·   $2,500 against Tadic (for 1 contravention of s.38 of the BCII Act)
15	White v CFMEU and Mcloughlin [2010] FMCA 693	Federal Magistrates Court Burchardt FM	19 February 2008	A CFMEU organiser, Mr Mcloughlin, imposed a ban on steel fixing for a concrete pour by employees of a subcontractor. Mr Mcloughlin arrived at the Alton site on the 19th February 2008 and told the employees who were in the process of fixing steel for the purposes of the pour, to attend the meeting. The ban interrupted the pour and was imposed to effect his intention to remove an elected OHS representative. The pouring of the concrete resumed at 11am and was completed at 7pm that day.	·   Agreed statement of facts in place ·   Penalty decision 21 September 2010	$46,200 comprising: ·   $38,500 and declarations against the CFMEU (for 1 contravention of s.38 BCII Act) ·   $7,700 and declarations against Mcloughlin (for 1 contravention of s.38 BCII Act)
16	Wotherspoon v CFMEU, Stephenson and Slater [2010] FMCA 184	Federal Magistrates Court Turner FM	30 April 2008	CFMEU organisers, Mr Stephenson and Mr Slater. engaged in meetings and encouraged stoppages on Fulton Hogan Monash Freeway Road Widening Project as a result of which, FHPL employees and others withdrew their labour and failed to perform their work for various periods on 30 April 2008. The stoppages caused delay and disruption to the road widening project on the Monash Freeway.	·   Agreed statement of facts in place and agreed penalties proposed ·   Penalty decision 22 March 2010	$31,000 comprising: ·   $25,000 against the CFMEU (for 1 contravention of s.38 BCII Act) ·   $5,000 against Stephenson (for 1 contravention of s.38 BCII Act) ·   $1,000 against Slater (wholly suspended) (for 1 contravention of s.38 BCII Act)
17	John Holland v CFMEU, Travers, O’Grady and Reardon [2009] FMCA 1248	Federal Magistrates Court O’Sullivan FM	24 March 2009	On 14 March 2009 three CFMEU officials entered two sites within John Holland’s Tullamarine Airport project. They held a meeting and encouraged and directed the cessation of work. The first site encouraged the cessation of work for those who had been engaged to perform building construction at the T2EP site. Approximately 180 workers refused or failed to do work.	·   Agreed statement of facts in place and agreed penalties proposed ·   Penalty decision 14 December 2009	$23,000 and declarations against the CFMEU (for 2 contraventions of s.38 BCII Act)
18	Cruse v CFMEU and Anor [2009] FCA 787	Federal Court Marshall J	6 October 2006	A CFMEU senior vice president held a stop work meeting with crane workers at 3:10 pm at a Melbourne site. Four employees of Sergi attended the meeting. As a result of the stop work meeting, a ban was placed on crane installation work by the Sergi employees at the site. The employees continued to perform other work during the ban, The ban ended at 4.40 and was in place for little over an hour. The ban was motivated by occupation health and safety concerns over the erection of cranes at the site. They were also motivated by a desire to place pressure on LCR Lindores into making a collective agreement with the Union.	·   Agreed statement of facts in place and agreed penalties proposed ·   Penalty decision 29 July 2009	$15,000 comprising: ·   $10,000 and declarations against the CFMEU (for 1 contravention of s.38 BCII Act) ·   $5,000 and declarations against Washington (for 1 contravention of s.38 BCII Act)
19	Cruse v CFMEU & Anor (2009) 182 IR 60; [2009] FMCA 236	Federal Magistrates Court Turner FM	25 September 2006	On the 25 September 2006, Mr McLoughlin was told if he held an industrial meeting the workers would have four hours deducted from their pay. He called the meeting during working hours which was attended by 36 employees. The meeting was about a dispute over a number of issues in their Enterprise Bargaining Agreement. The majority of the 36 walked off the job, for 3.5 to 4 hours following the meeting.	·   Agreed statement of facts in place ·   Penalty decision 9 April 2009	$38,500 comprising: ·   $27,500 and declarations against the CFMEU (for 1 contravention of each of s.38 BCII Act and EBA) ·   $11,000 and declarations against Mcloughlin ½ suspended (for 1 contravention of each of s.38 BCII Act and EBA)
20	Temple v Powell [2008] FCA 714; (2008) 169 FCR 169; (2008) 173 IR 189	Federal Court Dowsett J	17 August 2005 25 August 2005	At the Ravensthorpe nickel mine construction project in WA, 400 workers went on strike for 48 hours following a meeting with CFMEU official McDonald and organiser Powell. The meeting was motivated by an earlier authorised meeting where 150 workers had been told about new proposed legislation and some workplace issues had been discussed. They agreed to strike for 48 hours. A week later on the 24th of August Powell conducted a meeting. During this meeting they discussed reinstatement of two former employees. 20 workers subsequently went on strike for 24 hours	·   Agreed statement of facts in place ·   Penalty decision 23 May 2008	35,000 comprising: ·   $18,000 against the CFMEU ($12,000 for 1 contravention of s.38 BCII Act, $5,000 for 1 contravention of s.178 WR Act and $1,000 for 1 contravention of s.170MN WR Act) ·   $12,000 against the CFMEUW (for 1 contravention of s.38 BCII Act) ·   $3,500 against Powell ($2,500 for 1 contravention of s.38 BCII Act, $1,000 for 1 contravention of s.170MN WR Act) ·   $1,500 against McDonald (for 1 contravention of s.170MN WR Act)