Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union

[2023] FedCFamC2G 1060

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FedCFamC2G 1060

File number(s):

MLG 2251 of 2022

Judgment of:

JUDGE MANSINI

Date of judgment:

21 November 2023

Catchwords:

INDUSTRIAL LAW – FAIR WORK – admitted contraventions by CFMMEU official who acted in an improper manner whilst exercising the right to enter private premises and by the CFMMEU through its involvement – consideration of relevant factors – common course of conduct principle applied – declaratory relief granted and pecuniary penalties with partial personal payment ordered.   

Legislation:

Building and Construction Industry (Improving Productivity) Act 2016 (Cth)

Evidence Act 1995 (Cth) s.91

Fair Work (Registered Organisations) Act 2009 (Cth) s.27

Fair Work Act 2009 (Cth) ss.12, 46, 494, 500, 539, 545, 546, 550, 557, 687, 701, 793

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) item 323 Part 3 Schedule 1

Occupational Health and Safety Act 2004 (Vic) s.5

Cases cited:

A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The U-Vet School Case) [2022] FCA 1068

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) [2021] FCA 1414

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 138.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 951

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113

Australian Building and Construction Commissioner v Construction, Maritime, Mining and Energy Union (Constitution Place Case) [2020] FCA 1070

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Titan Cranes Case) [2022] FCA 774

Australian Building and Construction Commissioner v Hall [2017] FCA 274

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654

Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (the Agreed Penalties Case) [2015] HCA 46

Construction, Forestry, Maritime, Mining and Energy Union and Others v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non‑Indemnification Personal Payment Case)[2018] FCAFC 97

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161

Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171

Fair Work Ombudsman v Albert (No 3) [2023] FCA 220

Trade Practices Commission v CSR Ltd [1990] FCA 762

Wong v The Queen [2001] HCA 64

Division:

Division 2 General Federal Law

Number of paragraphs:

91

Date of hearing:

21 August 2023

Place:

Melbourne

Counsel for the Applicant:

Mr A Denton

Solicitor for the Applicant:

HWL Ebsworth Lawyers

Counsel for the Respondents:

Mr P Boncardo

Solicitor for the Respondents:

Construction, Forestry, Maritime, Mining and Energy Union

Table of Corrections
12 February 2024	The Solicitor for the Applicant be changed from “Fair Work Ombudsman” to “HWL Ebsworth Lawyers”.
12 February 2024	In the date of the order, the words “21 November 2021” has been replaced with “21 November 2023”.
19 March 2024	The Solicitor for the Respondent be changed from “Maurice Blackburn” to “Construction, Forestry, Maritime, Mining and Energy Union”

ORDERS

MLG 2251 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Respondent

MR PAUL TZIMAS

Second Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	21 NOVEMBER 2023

PENAL NOTICE TO THE RESPONDENTS:

·CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION; AND

·PAUL TZIMAS.

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT DECLARES THAT:

1.The Second Respondent contravened s.500 of the Fair Work Act 2009 (Cth) (Act) on 2 May 2022, when he pushed a senior site manager (as admitted) which act constituted acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the Act.

2.The Second Respondent contravened s.500 of the Act on 2 May 2022, when he knocked the hard hat off a senior site manager’s head and pushed him again (as admitted) which act constituted acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the Act.

3.The First Respondent twice contravened s.500 of the Act, by its involvement within the meaning of s.550 of the Act in the conduct of the Second Respondent subject of declarations 1 and 2 and by operation of s.793 of the Act.

THE COURT ORDERS THAT:

4.The Second Respondent pay pecuniary penalties totalling $10,500.00 in respect of the contraventions subject of declarations 1 and 2.

5.The First Respondent pay pecuniary penalties totalling $62,000.00 for its contraventions subject of declaration 3.

6.The penalties referred to above be paid to the Commonwealth of Australia:

(a)As relates to the Second Respondent, within 90 days of these orders; and

(b)As relates to the First Respondent, within 28 days of these orders.

7.The Second Respondent personally pay an amount that is no less than 30% of the penalties in order 4 above (a total of $3,150.00 being the Personal Payment Component), in that he not, whether before or after the payment of the penalties:

(a)Seek to have, or to encourage that, the First Respondent, in any way whatsoever, directly or indirectly, pay to him or for his financial benefit, in any way whatsoever, any money or financial benefit referable to the Personal Payment Component; and

(b)Accept or receive from the First Respondent, in any way whatsoever, any money or financial benefit referable to the Personal Payment Component.

8.There be no order as to costs.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Mansini

INTRODUCTION

1. This decision is about the pecuniary penalty to be imposed on the CFMMEU and CFMMEU official for their admitted contraventions of the Fair Work Act 2009 (Cth) (Act).

2. The contraventions involved two acts of physical aggression occasioned upon a site manager during the CFMMEU official’s exercise of his special privilege to enter the otherwise private workplace for purposes of investigating alleged safety issues.

3. These reasons explain the relief granted.

   CONTEXT

4. The following is a summary of the admitted facts and unchallenged evidence before the Court.

   The parties and relevant actors

5. The matter involves the following:

   (a)The Applicant is the Fair Work Ombudsman (FWO);

   (b)The First Respondent is the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU);

   (c)The Second Respondent, Mr Tzimas, is and at all relevant times was an officer or official of the CFMMEU and a permit holder under the Act and an authorised representative under the Occupational Health and Safety Act 2004 (Vic) (OHS Act);

   (d)ADCO Constructions Pty Ltd (ADCO) was principal contractor constructing a multi-story commuter car park at the Belgrave Railway Station (Project);

   (e)Senior Site Manager, Mr Kee, was at all relevant times employed by ADCO to work on the Project;

   (f)Site Manager, Mr Chamberlain, was at all relevant times employed by ADCO to work on the Project.

   About the CFMMEU official and his experience

6. From approximately 2010 to 2017, Mr Tzimas was an apprentice carpenter in the domestic building and construction industry, a carpenter in the commercial construction industry and on civil construction projects, as well as elected health and safety representative under the OHS Act for two construction companies.

7. At the time of the hearing and since August 2017, Mr Tzimas was employed in the role of “Organiser” at the CFMMEU. In that role, he looks after the interests of CFMMEU members employed in the steelfixing industry, as well as CFMMEU members performing work on construction sites in the north and western suburbs of Melbourne. He sometimes assists other organisers in commercial construction in Melbourne.

8. As CFMMEU Organiser, Mr Tzimas’ day to day duties include advising and assisting CFMMEU members with issues or disputes in relation to their employment; inquiring into suspected contraventions of the OHS Act, workplace laws or industrial instruments; and working with employees, employers and contractors to ensure that persons conducting businesses or undertakings comply with their obligations under the OHS Act.

9. Mr Tzimas included in his affidavit a statement that he feels strongly about workplace health and safety, partly because of his own, personal experiences which inspired him to become an organiser.

10. In his affidavit evidence, Mr Tzimas described that it is not unusual in his role as CFMMEU Organiser to face hostility from employers when investigating suspected safety contraventions at their sites.

    The incident of concern

11. On 2 May 2022, Mr Tzimas entered the Project in his role as CFMMEU Organiser and permit-holder. He was there to notify of and investigate alleged safety issues on the Project pursuant to the rights conferred by the OHS Act. Upon arrival at the Project on this day, Mr Tzimas met Mr Chamberlain who commenced to escort him on the inspection of the workplace.

12. By his own account, shortly after the inspection commenced on 2 May 2022, Mr Tzimas noticed Mr Kee who appeared to be cleaning up signage near a vehicle gate area.

13. Upon noticing Mr Kee during the 2 May 2022 entry, Mr Tzimas walked away from his escort and approached Mr Kee and the pair had an exchange of words.

14. Mr Tzimas gave evidence that he then pushed Mr Kee with one hand into Mr Kee’s shoulder, Mr Kee lost his balance and took a few steps back (First Physical Contact).

15. Mr Tzimas also deposed that he then dropped the folder that he had been holding to the ground, knocked the hard hat off Mr Kee’s head and pushed him again in the chest using both hands and causing him to again lose balance and take steps backwards (Second Physical Contact). The men then walked in different directions.

16. Another representative of ADCO then arrived and the inspection continued. Ultimately, ADCO agreed to revise ADCO’s safe work method statement to add a requirement for spotters to supervise excavator operation to ensure safe passage for workers required to pass through the area.

    The CFMMEU official’s reflections on his 2 May 2022 conduct

17. Mr Tzimas deposed to accepting full responsibility for his conduct earlier defined as the First and Second Physical Contacts. He also offered the following reflections:

    (a)He was not sure why he had pushed Mr Kee but was very upset at the time, he was not thinking straight, and recalled his heart was racing.

    (b)He sincerely regrets his conduct.

    (c)His conduct was not acceptable.

    (d)He is disappointed in himself that he lost his cool because he wants CFMMEU members to be confident in his ability to represent their interests in a composed and professional way and he appreciates that all it takes is one incident like this to potentially undermine that confidence.

    (e)He does not want his conduct to be used as part of the anti-union narrative that comes from certain parts of the media.

    (f)He believes in the work that the CFMMEU, and other unions, do to improve the lives of their members and wants to be able to continue his contribution to that work.

    (g)He is uncomfortable with the fact that union resources have been directed at defending these proceedings and that penalties will be ordered against himself and the CFMMEU in relation to his conduct, which is something that could have been avoided.

    (h)He deeply regrets the jeopardy in which he has put his ability to provide representation to CFMMEU members (expressed in the context of his awareness of the consequences of suspension or revocation of his right of entry permit).

    (i)He accepted that there is no excuse for his conduct (for which, as earlier cited, he accepted full responsibility) and stated that he is committed to ensuring that it will not happen again.

18. On 7 June 2023, after mediation in these proceedings had been attempted (to no avail), Mr Tzimas wrote a letter to Mr Kee in which he expressed his “regret” for his conduct on 2 May 2022. Among other things in that letter Mr Tzimas said:

    I appreciate you are a person who, just like me, comes to work to earn a living and that you deserve to be treated with respect at work.

    I hope that in the future we can collaboratively work together. Instead of arguing with one another, as has happened in the past, I hope that we will be able to work together to avoid people getting hurt on site.

    What happened on 2 May 2022 will not be repeated and I hope that we can move forward from this.

    The CFMMEU official’s training

19. Mr Tzimas deposed to having completed the following training:

    (a)Various training courses at the CFMEU Education and Training Unit including union delegate training, first aid training, a health and safety representative initial occupational health and safety course, a traffic management course, a Victorian WorkCover Authority approved course for authorised representatives of registered employee organisations and a safe tilt-up work requirements course which included identification of safety and common hazard requirements (in April, May, August, September and December 2017).

    (b)Resilience training arranged by the CFMMEU in March 2022 for its union organisers, conducted by an external organisation (Mentor Hub), in which Mr Tzimas had participated in six sessions of two hours’ duration (on 3 May 2022, 24 May 2022, 7 June 2022, 17 June 2022, 28 June 2022 and 19 July 2022).

    (c)One-on-one resilience training by Mentor Hub focussed on conflict management, in which Mr Tzimas had most recently participated on 8 June 2023 and 6 July 2023.

20. Mr Tzimas deposed to his belief that, had the resilience training described above been conducted sooner, the situation with Mr Kee may have been avoided as he had since learned skills to de-escalate - such as calming himself with controlled breathing. Further, as a result of the resilience training, Mr Tzimas said he is confident that he can remain calm when confronted with high pressure situations in the course of performing his role in the future.

    The CFMMEU official’s prior conduct

21. Mr Tzimas is known to have contravened the Act on the following prior occasions:

    (a)On 26 July 2018, when he engaged in an admitted contravention of s.46 of the Act by his knowing participation or concern in organising employees at the University of Melbourne Veterinary School Project site to engage in unlawful industrial action by refusing to perform work on several occasions. The initial hearing took place on 29 October 2020 and was resumed on 4 November 2021. Penalties were ordered on 12 September 2022: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The U-Vet School Case) [2022] FCA 1068.

    (b)On 4 December 2019, when he engaged in five admitted contraventions of s.500 of the Act in the course of exercising his right to enter the West Gate Tunnel Project to investigate alleged safety breaches. The admitted contravening conduct included a series of verbal remarks (or, as the first instance Judge described, “speech acts”) over a period of some six hours directed towards a WorkSafe inspector and a Victorian police officer. At the time of the first instance hearing of that matter, on 17 September 2021, the Court had received unchallenged evidence about Mr Tzimas’ self-reflection and regret which he said had been demonstrated through his changed conduct (among other evidence including as to his extensive training and therapy with a trauma specialist and psychologist to relearn how to manage his emotions and regulate emotional response). That evidence may be accepted on the basis that it was unchallenged in those proceedings and not subject of cross-examination or inadmissible within the bounds of s.91 of the Evidence Act 1995 (Cth) - albeit on a limited basis as establishing the fact of those representations made to the Federal Court in that case and nothing more: Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [47]. Penalties were ordered on 16 November 2021 and stayed pending determination of the appeal. The matter has since been remitted for rehearing to a single Judge in the original jurisdiction of the Federal Court and is pending redetermination: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) [2021] FCA 1414, in particular at [134]-[136]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 138.

    The CFMMEU’s prior conduct

22. The FWO produced a table summarising the CFMMEU’s prior contraventions of the Act since the year 2000, as determined in 200 previous judgments (extracted at Annexure A, shading necessarily removed for publication, to this decision).

    The CFMMEU’s financial capacity

23. The FWO adduced the current financial reports available for the CFMMEU that related to the 2020-2021 and 2021-22 financial years for the CFMMEU’s Construction and General Divisions for both its Victorian/Tasmanian Divisional Branch and its National Office. Relevantly summarised as follows:

CFMMEU Branch financial report	Membership	Total comprehensive income for FY year	Total (defecit)/surplus for FY year	Net assets
Victorian/Tasmanian Branch financial report 2020-2021	28,031	$6,987,078	$2,403,396	$79,426,980
Victorian/Tasmanian Branch financial report 2021-2022	27,044	$4,092,927	($1,472,797)	$86,414,058
National Office financial report 2020-2021	65,013	$6,311,863	$208,821	$11,798,133
National Office financial report 2020-2021	63,372	$6,215,011	$12,575	$11,810,706

PROCEEDINGS BEFORE THIS COURT

1. By its amended statement of claim filed 20 April 2023 and submissions to the Court, the FWO sought:

   (a)Declaratory relief, specifically:

   (i)Declarations that, on 2 May 2022, Mr Tzimas contravened s.500 of the Act whilst exercising rights in accordance with Part 3-4 of the Act by acting in an improper manner by engaging in the First Physical Contact and the Second Physical Contact; and

   (ii)A declaration that the CFMMEU is liable for each of the two contraventions at (a).

   (b)Pecuniary penalties against each of the CFMMEU and Mr Tzimas pursuant to s.546 of the Act by reason of the two contraventions in the total amounts of $85,248 for the CFMMEU and $13,852.80 for Mr Tzimas, arrived at as follows:

Party	Maximum aggregate penalty	Recommended penalty (applying common law course of conduct to recognise overlap)	Further discount for cooperation	Total
CFMMEU	$133,200	$106,560 (80% of maximum)	20%	$85,248
Mr Tzimas	$26,640	$17,316 (65% of maximum)	20%	$13,852.80

1. The CFMMEU and Mr Tzimas did not oppose the application to the extent of the declarations and was not understood to oppose the form of the declarations sought.

2. The CFMMEU and Mr Tzimas also did not oppose the imposition of penalties but opposed the level of penalties sought and resisted personal payment or non-indemnification orders as not being appropriate in the present case. They contended for penalties of $16,500 for each contravention by the CFMMEU (totalling $33,000) and $2,664 for each contravention by Mr Tzimas (totalling $5,328).

3. The FWO sought a 28-day payment period but the CFMMEU pressed for a 90-day payment period. There was no opposition to the request for Mr Tzimas to have a 90-day payment period.

   Materials relied upon

4. The FWO relied on:

   (a)Amended statement of claim accepted for filing on 20 April 2023;

   (b)Affidavit of Mr Reece filed on 18 May 2023;

   (c)Outline of written submissions filed on 28 June 2023; and

   (d)Outline of written submissions in reply filed on 12 July 2023.

5. The CFMMEU and Mr Tzimas relied on:

   (a)Amended defence of the CFMMEU and amended defence of Mr Tzimas, respectively accepted for filing on 28 April 2023 and 1 May 2023;

   (b)Affidavit of Mr Tzimas filed on 14 June 2023, excluding certain parts not read in response to objections (at paragraphs 37, 38, 39, 40, 46, 47, 50, 52, 55) and identified parts to be read as lay opinion (at paragraphs 36 and 37); and

   (c)Outline of written submissions filed on 4 July 2023.

6. No witness was required for cross-examination at the hearing.

   THE CONTRAVENTIONS

7. Part 3-4 of the Act provides a framework for union officials who hold entry permits to enter otherwise private premises for purposes related to their representative role under the Act and/or State and Territory occupational health and safety laws. The statute provides a limited purpose for such entry. It also sets out the requirements for exercising and prohibiting certain conduct in the exercise of such rights.

8. Relevantly, s.500 of the Act provides:

   Permit holder must not hinder or obstruct

   A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

   Note 1: This section is a civil remedy provision (see Part 4-1).

   Note 2:A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

   Note 3:A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).

9. The liability of bodies corporate (in terms of conduct and state of mind of a body corporate) is provided for at s.793 of the Act. That provision relevantly provides that any conduct engaged in on behalf of a body corporate by an officer, employee or agent of the body corporate, within the scope of their actual or apparent authority, is taken for the purposes of the Act and the procedural rules to have been engaged in by the body corporate. And if, for the purposes of the Act or the procedural rules it is necessary to establish the state of mind of a body corporate, including a person’s knowledge, intention, opinion, belief or purpose and reasons for any such intention, opinion, belief or purpose, it is enough to show that:

   (a)the conduct was engaged in by a person of the body corporate with the scope of his or her actual or apparent authority; and then

   (b)that person had that state of mind.

10. A “person” who is involved in a contravention of a civil remedy provision, within the meaning of s.550, is also taken to have contravened that section: s.550(1). Such person is involved in a contravention of a civil remedy provision including if the person:

    (c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention

11. The FWO in their capacity as a “fair work inspector” may apply to this Court for orders in relation to contraventions of s.500 of the Act: ss.12 and 539(2). The Court may make any order it considers appropriate where satisfied that a person has contravened a civil remedy provision: s.545(2). The Court may also make a pecuniary penalty order for such contravention: s.546.

    In the present case

12. On the materials before the Court, there was no dispute and I find that the FWO is (and was at all material times):

    (a)a statutory appointee of the Commonwealth, appointed by written instrument pursuant to s.687(1) of the Act;

    (b)a fair work inspector pursuant to s.701 of the Act;

    (c)an authorised applicant for orders in proceedings relating to a contravention of a civil remedy provision to which the Australian Building and Construction Commissioner was a party, and which was pending in court immediately before 7 December 2022, pursuant to item 323 of Part 3 of Schedule 1 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth); and

    (d)by reason of sub-paragraphs (a) to (c) above, a person with standing and authority to bring these proceedings under s.539 of the Act.

13. There was no dispute and I find that the CFMMEU is (and was at all material times):

    (a)an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and by reason of being so registered, a body corporate pursuant to s.27 of that Act;

    (b)a body corporate capable of being sued in its registered name; and

    (c)an "industrial association" within the meaning of that term in s.12 of the Act.

14. There was also no dispute and I find that Mr Tzimas is (and was at all relevant times):

    (a)an "officer" of the CFMMEU for the purposes of s.793 of the Act (as defined in s.12 of the Act);

    (b)a "permit holder” within the meaning of s.12 of the Act;

    (c)an "authorised representative" of a registered employee organisation within the meaning of s.5 of the OHS Act; and

    (d)in relation to all matters in respect of Mr Tzimas, for the purposes of s.793 of the Act, acting in his capacity, and within the scope of his authority, as an officer of the CFMMEU.

15. There was no dispute and I find that ADCO was the “occupier” of the Project within the meaning of s.12 of the Act and the project site was a “premises” for the purposes of Part 3-4 of the Act.

16. There was also no dispute and I find that, at all relevant times, at least one of the worker(s) performing work at the Project was eligible to be member(s) of the CFMMEU and the CFMMEU was entitled to represent the industrial interests of at least one of the worker(s) performing work at the Project.

17. It was accepted and I find that Mr Tzimas was exercising rights in accordance with Part 3-4 of the Act on 2 May 2022, on which occasion he entered the Project pursuant to a “State or Territory OHS right” within the meaning of s.494(2) of the Act. Further, on that day, Mr Tzimas possessed the actual, apparent or ostensible authority to act on behalf of the CFMMEU pursuant to s.793 of the Act.

18. By their amended defences:

    (a)Mr Tzimas admitted that he contravened s.500 of the Act on two occasions on 2 May 2022, by acting in an improper manner while exercising rights in accordance with Part 3-4 of the Act – specifically, by having: aggressively pushed Mr Kee with one hand into Mr Kee's left shoulder, causing Mr Kee to lose balance and take a few steps back (incident earlier defined as the First Physical Contact) (First Admitted Contravention) and dropped the compendium he was holding to the ground, flipped Mr Kee's hard hat off his head and used both hands to again push Mr Kee in the chest, causing Mr Kee to again lose balance and take steps backwards (incident earlier defined as the Second Physical Contact) (Second Admitted Contravention); and

    (b)In relation to the First Admitted Contravention and the Second Admitted Contravention, the CFMMEU admitted that: Mr Tzimas had actual, apparent or ostensible authority to act on behalf of the CFMMEU; and the CFMMEU knew each of the matters at paragraph 38 of these reasons;

    (c)By operation of s.793 of the Act, the CFMMEU admitted that: the actions and conduct of Mr Tzimas were also the actions and conduct of the CFMMEU; the CFMMEU possessed the same state of mind as Mr Tzimas in relation to the above conduct; the CFMMEU was knowingly concerned in the conduct of Mr Tzimas subject of the First Admitted Contravention and the Second Admitted Contravention and therefore “involved” in each of his two admitted contraventions for the purposes and within the meaning of s.550 of the Act; and

    (d)In the circumstances, the CFMMEU contravened s.500 of the Act on two occasions by reason of Mr Tzimas’ admitted conduct on 2 May 2022 as pleaded.

19. I am satisfied that the amended statement of claim filed in this matter and upon which the FWO relies complies with the rules of pleading and properly pleads causes of action that support the grant of relief. In particular, I am satisfied that the facts alleged in the statement of claim and the admissions of the CFMMEU and Mr Tzimas in their amended defences supported by the affidavit of Mr Tzimas establish that:

    (a)Mr Tzimas contravened s.500 of the Act on two occasions, by engaging in the First Admitted Contravention and by engaging in the Second Admitted Contravention which acts constituted acting in an improper manner whilst exercising rights in accordance with Part 3-4 of the Act; and

    (b)By operation of s.793 of the Act, the actions and conduct of Mr Tzimas were also the actions and conduct of the CFMMEU and the CFMMEU possessed the same state of mind as Mr Tzimas in relation to those actions and conduct; the CFMMEU held the requisite knowledge that Mr Tzimas was a permit holder under the Act and an authorised representative under the OHS Act, that he was entering the Project exercising rights in accordance with Part 3-4 of the and was knowingly concerned in the admitted conduct of Mr Tzimas and therefore involved in each of his two contraventions within the meaning of s.550(1) of the Act.

20. The Court has a wide discretion to make declarations. Having regard to the admissions of the CFMMEU and Mr Tzimas and in the particular circumstances of this case, I am satisfied that this is an appropriate case for declaratory relief, if for no other reason than to record the Court’s disapproval of the contravening conduct.

    APPROACH TO DETERMINATION OF PENALTIES

21. The Court’s power to impose pecuniary penalties in respect of the established contraventions resides in s.546(1) of the Act.

22. Section 546(1) permits the Court to impose a pecuniary penalty “that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision”. For the above reasons, that state of satisfaction exists.

23. It falls to determine what level of penalty (if any) is appropriate as against the First Respondent and the Second Respondent in light of their respectively established contraventions.

24. The value of a penalty unit at the relevant time was $222 and the maximum penalty which might be imposed for each contravention of s.500 of the Act is therefore:

    (a)$66,600 in respect of the CFMMEU (a total maximum penalty of $133,200); and

    (b)$13,320 in respect of Mr Tzimas (a total maximum penalty of $26,640),

    (see s.4AA of the Crimes Act 1914 (Cth) and Notice of Indexation of the Penalty Unit Amount [F2020N00061]; ss.539(2) and 546(2)(b)).

    Factors relevant to the Court’s discretion

25. The Court’s discretion in determining appropriate penalties is very broad: A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6].

26. As affirmed by the High Court of Australia in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 (Pattinson), the purpose of a civil penalty under the regime provided by the Act is primarily, if not wholly, protective in the promotion of the public interest in compliance with the provisions of the Act and in (general and specific) deterrence of further contraventions. An “appropriate” penalty being one that “strikes a reasonable balance between oppressive severity and the need for deterrence in a particular case”: Pattinson at [15]-[16] and [41] citing the plurality in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (the Agreed Penalties Case) [2015] HCA 46 and French J in Trade Practices Commission v CSR Ltd [1990] FCA 762 (CSR Ltd); and as cited in Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161.

27. The task of assessing what amount to impose involves the selection of a figure taking into account all factors relevant to the particular case: Wong v The Queen [2001] HCA 64 at [75]. The oft cited decision of French J in CSR Ltd listed those factors relevant to an overall assessment of penalty, restated by the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non‑Indemnification Personal Payment Case) [2018] FCAFC 97 at [20]:

    ..the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition.

28. This is not an exhaustive list. Further, each case warrants an “idiosyncratic” approach and a careful analysis of all relevant circumstances - as was stated in Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [12]:

    Penalties are not a matter of precedent. The choice of penalty must be dictated by the individual circumstances of a case, not by a line by line comparison with another case.

29. I consider the present matter in light of those well-established principles and case authorities (for completeness, the principles from the authorities regarding penalty imposed under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) having equal application here: Australian Building and Construction Commissioner v Construction, Maritime, Mining and Energy Union (Constitution Place Case) [2020] FCA 1070 at [205]).

    Nature, character and seriousness of the contravening conduct

30. The contravening conduct is not disputed. It comprised two aggressive acts of physical contact instigated by Mr Tzimas toward ADCO’s Senior Site Manager Mr Kee on 2 May 2022, during the course of Mr Tzimas’ exercise of his special privilege and statutory right to enter the Project.

31. As has been admitted, there is no question that the physicality exercised by Mr Tzimas toward Mr Kee was unacceptable, and in the case of each admitted contravention amounts to an otherwise improper act within the meaning of s.550 of the Act. The improper behaviour was ultimately (and properly) not sought to be excused by any prior altercation or provocation.

32. It may be accepted that this is not a case about whether Mr Kee was hindered or obstructed pursuant to s.500 (nor has such allegation been admitted). The “otherwise improper act” in s.500 is not necessarily to be given any lesser significance or to be treated with less weight than a hindrance or obstruction, but rather an assessment of the gravity of the contravention is to be undertaken with regard to the particular facts and circumstances in which they occurred: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union(The Adelaide Airport Case) [2021] FCA 951 at [132].

33. However, the FWO urged the Court to take into account that Mr Kee was impacted in the manner in which he went about his work on business as a result of the contravening conduct. On the admitted facts, there could be no doubt that the two physical contacts were of some impact to Mr Kee, at least in terms of the disrespectful and aggressive interruption to the task he was undertaking (however brief). Although there was no evidence of any particular upset or distress caused in the aftermath, by Mr Tzimas’ letter of regret he accepted as much including by his acknowledgement that Mr Kee deserved to be treated with respect at work and in saying his behaviour would not be repeated.

34. Mr Tzimas was there at the Project to investigate alleged safety concerns yet chose to effectively compromise safety by initiating physical aggression toward an employee of ADCO and senior site manager and in doing so also caused the removal of his personal protective equipment (by knocking or flipping the hard hat off Mr Kee’s head).

35. In my view, these are all matters relevant to the assessment of the nature, character and seriousness of the otherwise improper acts that constituted the contravening conduct.

36. In the present case, the CFMMEU has admitted that it was involved in the two admitted contraventions of Mr Tzimas by virtue of its knowing concern and via the operation of the body corporate liability provision at s.793 of the Act. The case is distinct from Pattinson to the extent that, here, the CFMMEU was an indirect contravenor.

37. However, the nature and seriousness of the CFMMEU’s admitted contraventions of s.500 of the Act in this matter are to be viewed against its record of statutory contraventions: Pattinson at [9]. The CFMMEU’s record of contravening conduct is extensive. On the evidence before the Court, it has been involved in contraventions of the same provision as the instant offence on more than 56 prior occasions (noting that, in some of the 56 judgments referred to by the FWO, there was more than one contravention of s.500).

38. In terms of Mr Tzimas’ history of contravening conduct, on the established facts and as at the time of the subject incident on 2 May 2022:

    (a)Mr Tzimas had admitted to five prior s.500 contraventions involving otherwise improper acts on the West Gate Tunnel project (subject of judgement in TheBeams Lift Case), with judgment at first instance delivered and penalty ordered but stayed pending appeal (which penalty remained pending at the time of this judgement); and

    (b)Mr Tzimas had admitted a single contravention of the BCIIP Act at the Melbourne University project (subject of judgment in The U-Vet School Case), which had been heard as to penalty but judgment was reserved.

39. It follows that, at the time of the contravening conduct in the present case, Mr Tzimas had a history of contravening conduct notwithstanding that penalty orders were not in effect.

40. Further, Mr Tzimas had by then been required to address the Courts about his admissions and reflections on his conduct in relation to those prior contraventions.

41. Whilst his prior history could hardly be described as recidivist, this context reflects poorly on Mr Tzimas and warrants some consideration in the assessment of the gravity of the instant offences. The relevant contravening conduct in the present case was plainly deliberate.

42. Having regard to the above, the contravening conduct is objectively serious and reflective of an ongoing defiance (by both Mr Tzimas and, to a significantly greater extent, the CFMMEU) of the law that prohibits improper conduct of permit holders.

    Corrective action, cooperation with the FWO and contrition

43. Mr Tzimas’ affidavit evidence was unchallenged and accordingly the Court did not have the benefit of any direct testimony as to his acceptance of responsibility, statements of regret and commitments that such unacceptable behaviour will not happen again.

1. In at least The Beams Lift Case (which also involved admitted contraventions of s.500 for improper acts whilst exercising his right as a permit-holder to enter and investigate safety breaches), Mr Tzimas gave evidence of his regret and training and therapy and asserted “changed conduct”. Those assertions pre-dated the expressions of regret and changed conduct made in the present case.

2. It is difficult to rationalise that unchallenged evidence in these proceedings with the evidence Mr Tzimas gave to the Federal Court in The Beams Lift Case about regret and changed conduct given it was before Mr Tzimas chose to again contravene s.500 at the Project. However, as those matters were not put to him directly, that evidence is not received as to discredit the assertions made about his contrition in the present case.

3. Since the admitted contraventions, Mr Tzimas has participated in a series of training (both group and one-on-one) tailored to his role. The FWO’s criticism of Mr Tzimas’ evidence as to training is somewhat warranted given Mr Tzimas’ relative experience in the industry and as an official of the CFMMEU, particularly having had prior training of relevance to his role as permit holder and the nature of the contraventions in the present case which involved inflicting physical aggression while exercising right of entry. Nonetheless, I consider more recent and more targeted training a relevant factor that goes to establish some corrective action on the part of Mr Tzimas and, as the sponsor of that training, the CFMMEU. In respect of the CFMMEU, the provision of such training to its officers reflects at least an attempt on its part to demonstrate to the Court that it has taken steps to support its officials in learning the necessary skills but falls well short of establishing a culture of compliance or any greater effort.

4. Mr Tzimas did not apologise to Mr Kee but did express his regret for the admitted conduct and undertaking of future appropriate behaviour toward Mr Kee, in writing. The letter, sent some 12 months after the incident, was not proximate. Whilst it may be accepted that the letter was sent after the mediation had concluded and Mr Tzimas was entitled to reserve his rights in that respect, the apparent efficacy in terms of the relationship with Mr Kee and the legitimacy of its message was diluted by the effluxion of time. I consider the fact of the letter and expression of regret is nonetheless a relevant matter to take into consideration albeit not to be accorded substantial weight.

   Size and financial circumstances of the contravenors

5. There is no evidence from Mr Tzimas of his financial position, such that he says he cannot afford to pay the FWO’s proposed penalty. However he did contend for a much lesser penalty to be imposed.

6. It is uncontroversial that the CFMMEU is a large industrial association. The evidence established that any financial penalty within the scope of power for the Courts will have no impact on the CFMMEU’s economic viability.

   Deterrence

7. The legislation confers special privileges on union officials who are granted a permit to enter otherwise private property for certain prescribed purposes. There are specific prohibitions on the conduct of a permit-holder when exercising such privilege.

8. Further, s.500 of the Act provides a mechanism to assist in achievement of the stated object of Part 3-4, which is to establish a framework for officials of industrial organisations to enter premises that balances:

   (a)the right of organisations to represent their members in the workplace and (among other things) investigate suspected contraventions of State or Territory OHS laws; and

   (b)the right of employees to receive, at work, information and representation from officials of organisations; and

   (c)the right of occupiers of premises and employers to go about their business without undue inconvenience.

9. By their admitted contraventions of s.500, Mr Tzimas and by its involvement the CFMMEU have ultimately undermined the Act’s framework and the balance that the objects of Part 3-4 were designed to achieve.

10. The remorse of Mr Tzimas as expressed to the Court in these proceedings is accepted on its face and is relevant to consideration of the need for deterrence. However, not (as the CFMMEU submitted) worthy of any significantly beneficial outcome on account of the apparent rarity of Mr Tzimas’ remorse when compared with other CFMMEU officials before him. Also having regard to Mr Tzimas’ prior contraventions of the Act and importantly his five prior contraventions of s.500 for otherwise improper conduct, there is a need for specific deterrence.

11. The steps that the CFMMEU has taken to offer training to its officials and specifically Mr Tzimas is also relevant and accepted on its face. It has also cooperated with the FWO and these are matters of favourable consideration in terms of the fixing of an appropriate penalty. Similarly, the degree of cooperation in these Court proceedings warrants some allowance. But the CFMMEU’s track record, as summarised in Annexure A to these reasons, is extensive. Colourful and illuminating are the insights of prior judicial consideration in this respect but strictly unnecessary to repeat again here. Suffice to say I consider the contraventions in the present case when weighed against the relevant factors before the Court warrant specific and general deterrence in respect of the CFMMEU.

12. Indeed it is of utmost importance to the effectiveness of the right of entry framework that a failure to comply with these statutory obligations attracts sufficient consequence as to incentivise both future compliance on the part of individuals and a culture of compliance on the part of industrial organisations that employ individual permit-holders to act in the interests of their members. 

    THE APPROPRIATE PENALTY

13. When all of the above factors are considered, I am satisfied that it is appropriate to impose a pecuniary penalty on Mr Tzimas for each of his contraventions of s.500 and on the CFMMEU for its involvement in those contraventions pursuant to s.550(1) of the Act.

    Course of conduct

14. The parties agree that the conduct subject of the contraventions derives from a single course of conduct that was temporal and of the same factual basis and may be characterised as a common course of conduct.

15. The statutory course of conduct provision at s.557 does not apply to contraventions of s.500 of the Act: s.557(2). However, it would appear necessary to consider the application of the common law course of conduct principle with respect to each contravenor. There are conflicting authorities on the point. In Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171, the Court considered that if a person is to be punished for two contraventions that formed part of the one course of conduct, the Court should begin from the premise that the maximum penalty is the maximum for one contravention: at [31] as cited in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 at [133]. In Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 at [108] at first instance and which passage was not disturbed by the High Court of Australia, Justice Snaden set out a short summary as follows:

    The “course of conduct” principle does not operate as a de facto limit on the penalties that the court may impose in respect of multiple, related contraventions and the court is not obliged to apply it if doing so would fail to reflect the seriousness of the contraventions: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal)(2019) 286 IR 336 (hereafter, “The Nine Brisbane Sites Appeal”), 342-343 [12] (Allsop CJ), 363-364 [124] (Rangiah J, with whom Griffiths J agreed); Yazaki, 106 [235] (Allsop CJ, Middleton and Robertson JJ). Nonetheless, in applying the principle, the task is “...to evaluate the considerations informing the contraventions (factual and legal) in order to impose appropriate penal relief that does not punish twice for the same conduct”: Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203; (2018) 363 ALR 464, 481 [91] (Allsop CJ, Collier and Rangiah JJ).

16. I am prepared to accept that the two acts at the Project on 2 May 2022 to which Mr Tzimas has admitted may be characterised as a common course of conduct which involved two physical aggressions. Although the Court is not necessarily obliged to adopt the maximum for a single contravention in the case of either Mr Tzimas or the CFMMEU, having evaluated the considerations informing the contraventions, I consider the penalties sought by the FWO in the present case to be excessive to the extent that they exceed the maximum that would be imposed for a single contravention as penalties to that level would be to essentially double punish each contravenor.

    Conclusion as to appropriate penalties

17. Overall, the combination of factors to which I have referred above indicates that in respect of Mr Tzimas the contraventions are objectively serious and justify penalty fixed at sufficient level to give effect to the object of general and specific deterrence but not in excess of the maximum for a single contravention. I shall impose on Mr Tzimas pecuniary penalty for his contraventions of s.500 in the total amount of $10,500.00.

18. Also having regard to the combination of factors referred to above, by its involvement as defined by s.550, I shall impose on the CFMMEU a penalty reflective of the seriousness of its contraventions and directed at the object of general and specific deterrence but not in excess of the maximum for a single contravention. I shall impose on the CFMMEU pecuniary penalty for its contraventions of s.500 pursuant to s.793 in the total amount of $62,000.00.

    Totality principle

19. The “totality principle” requires that I ask myself, before imposing anything, whether the total of the penalties that I would impose might amount to a disproportionate response to the wrongdoing. Having considered them in their totality, I am satisfied that the penalties are a proportionate response to the Respondents’ wrongdoing and an appropriate level to achieve the deterrent objective to which civil penalties are directed.

    Personal payment order

20. Section 546 is sufficient to sustain a “personal payment” or “non-indemnification” order, which power is discretionary in nature and requires regard to be had to the principles of general and specific deterrence as relevant considerations: The Non‑Indemnification Personal Payment Case at [38] citing the High Court of Australia in Pattinson; see also Fair Work Ombudsman v Albert (No 3) [2023] FCA 220 at [119]. In exercising such discretion, it is open to the Court to impose a partial non-indemnification order: Construction, Forestry, Maritime, Mining and Energy Union and Others v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40 at [230]; see also Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Titan Cranes Case) [2022] FCA 774 at [62].

21. Such discretion ought be exercised with caution and each case will turn on the particular circumstances. Here, the contravening conduct was not the product of any implementation of an unlawful union policy or strategy and Mr Tzimas has expressed contrition and regret to a degree. However, in the particular circumstances, I am of the view that a personal payment or non-indemnification order is warranted as an effective deterrent including because Mr Tzimas has previously contravened the very same provision of the Act on five occasions. The physically aggressive nature of the conduct in the present case was serious and it is not enough that the bill for Mr Tzimas’ contraventions in this case be picked up by his employer and categorised as another cost of their doing business.

22. That said, having regard to moderating factors including Mr Tzimas’ expressed regret and the evidence he gave to the Court of his reflections on his behaviour on 2 May 2022, subsequent training undertaken and of his personal commitment to ensuring that this will not happen again, I am satisfied that a partial payment order in the amount of no less than 30% is appropriate (the Personal Payment Component, amounting to a personal payment of $3,150.00).

23. I am satisfied that it is appropriate that the Court make orders in respect of the penalties being paid to the Commonwealth of Australia, the CFMMEU is to pay within 28 days of orders being made, Mr Tzimas is to pay within 90 days of orders being made and there be no order as to costs.

    CONCLUSION

24. I will make declarations and orders in accordance with the above reasons.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       21 November 2021

Annexure A

PRIOR PENALTIES & DECLARATIONS UNDER INDUSTRIAL LAWS INVOLVING THE CFMMEU OR ITS REPRESENTATIVES

Prepared by the Fair Work Ombudsman

Legislation key:

FW Act - Fair Work Act 2009 (Cth)

BCIIP Act - Building and Construction Industry (Improving Productivity) Act 2016 (Cth)

BCII Act - Building and Construction Industry Improvement Act 2005 (Cth)

WR Act - Workplace Relations Act 1996 (Cth)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
1.	Fair Work Ombudsman v Albert (No 3) [2023] FCA 220 (CR2SM Case)	23-24 July 2018	Three CFMMEU officials (Te Aranui Albert, Blake Hynes and Michael Ravbar) each admitted to 2 contraventions of s.500 of the FW Act for hindering and obstructing persons on a construction site on 23 July 2018 (by conduct including blocking trucks performing lifting works and disrupting representatives of two construction companies). One of the officials (Blake Hynes) admitted to an additional contravention of s.500 for improper conduct, which involved verbal aggression towards the site safety advisor on 24 July 2018. The CFMMEU admitted to being involved in each of those contraventions (by operation of ss.550 and 793 of the FW Act).	Penalty decision on 16 March 2023	Te Aranui Albert - One penalty of $7,000.00 for 2 x s.500 FWAct. Michael Ravbar - One penalty of $7,000.00 for 2 x s.500 FW Act. Personal payment order made. Blake Hynes - Total penalties of $12,000 made up of the amounts set out below. Personal payment order made. one penalty of $7,000.00 for 2 x s.500 FWAct on 23 July 2018; and one penalty of $5,000.00 for 1 x s.500 FWAct on 24 July 2018 CFMMEU - Total penalties of $88,000.00, comprising four penalties of $22,000.
QUD 656 of 2019
Federal Court of Australia – Queensland
Collier J
2.	Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Bruce	From about 8 March 2018 to about 17 April 2018 (relevant period), the CFMMEU and seven union officials (the respondents) appeared at the site of the Bruce Highway Caloundra to Sunshine Highway Upgrade (Project Site) seeking entry to the Project Site. All but one of the individual	Penalty decision on 16 March 2023	Collier J imposed the following penalties on the eight respondents: CFMMEU - $85,000 (24 contraventions);

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
Highway)[2023] FCA 219	respondents had been issued with valid entry permits pursuant to Pt 3-4 of the FW Act.	Mr Kurt Pauls - $30,000.00 (8 contraventions); Mr Beau Seiffert - $25,000.00 (7 contraventions); Mr Te Aranui Albert - $3,500.00 (1 contravention); Mr Blake Hynes - $15,000.00 (3 contraventions); Mr Luke Gibson - $7,000.00 (2 contraventions); Mr Matthew Parfitt - $10,000.00 (2 contraventions); and Mr Royce Kupsch - $3,5000.00 (1 contravention).
QUD238/2018 Federal Court of Australia – Queensland Collier J	On entry to the Project Site, the respondents were walking around, entering work areas and causing work stoppages, refusing requests by the occupier to leave the Project Site and failing to comply with requests from the Queensland Police and/or WHS requirements on site.
On each occasion entry was made by the respondents during the relevant period, the individual respondents said they were entering the site pursuant to s 81(3) of the WHS Act (QLD) (rather than as union officers), and accordingly that entry permits issued under the FW Act were not required. The individual respondents therefore refused to produce their entry permits. On 10 April 2018, two of the respondents arrived at the Project Site and refused to leave when requested, and were subsequently arrested (with similar events occurring between 11-17 April 2018). The entries onto the Project Site resulted in work stoppages, shift cancellations, safety issues, project delays and increased costs.
3.	Construction, Forestry,	25 January	The impunged conduct concerned the action of three officials of the NSW Division of the CFMMEU (Mr Kera, Mr Greenfield and Ms Mallia) and one NSW delegate (Mr Byrnes) on 25 January 2019, 30 January 2019, 31 January 2019 and 1 February 2019, directed against Griffiths Cranes Pty Ltd, t/a Botany Cranes (Botany Cranes) at a commercial site in Botany, NSW (Site).	First instance penalty decisions of Rares J handed down on 19 April [2021] FCA 363 and 19 May 2022 [2021] FCA 525	CFMMEU $190,000 for 1 x s47(1) BCIIP Act contravention $175,000 for 1 x s52 BCIIPAct contravention $150,000 for 1 x 54 BCIIPAct contravention
Maritime, Mining and	to 1
Energy Union v Fair	February
Work Ombudsman	2019
(Botany Cranes Appeal)
[2023] FCAFC 40
Full Federal Court of
Australia- Sydney

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
NSD 574 of 2019- Rares J Australian Building and	On 25 January 2019, in protest of the termination of employment of Mr Byrnes, each of the four individual respondents engaged (or in respect of one official, organised) an unlawful picket in contravention of s47 of the BCIIP Act which involved a group of approximately 50 CFMMEU members assembling around and blocking access to the Site. On 30 January 2019, a second picket took place at the Site, again involving a group of CFMMEU members including Mr Greenfield. A conversation took place between Mr Greenfield and a manager of Botany Cranes which included, in effect a statement by Mr Greenfield that the protest would stop if Mr Byrnes was reinstated. This conduct was found have constituted the taking of action against Botany Cranes with intent to coerce it to employ Mr Byrnes in contravention s 52 of the BCIIP Act. Finally on 31 January 2019 and 1 February 2019, Mr Greenfield had conversations with a manager of Botany Cranes directed to getting Botany Cranes to accept an EBA proposed by the CFMMEU, constituting the organising or taking of action with intent to apply undue pressure in contravention of s 54(1) of the BCIIP Act. By reason of ss 94(1)(a) and 95(1)(b) of the BCIIP Act the conduct of the CFMMEU officials and delegate was taken to be conduct and actions of the CFMMEU, which thereby contravened s 47,52 and 54 of the BCIIP Act.	Federal Court Appeal Penalty decision on 15 March 2023	Mr Kera: $35,000 for 1 x s47(1) BCIIP Act contravention Mr Greenfield: -        $25,000 for 1 x s47(1) BCIIP Act contravention $30,000 for 1 x s52 BCIIPAct contravention $18,000 for 1 x 54 BCIIPAct contravention Ms Millia: $18,000 for 1 x s47(1) BCIIP Act contravention Mr Byrnes: $3,500 for 1 x s47(1) BCIIP Act contravention Note: The above penalties reflect a partial redetermination of penalties by the Full Court of the Federal Court (Bromberg, Moshinsky and Bromwich JJ) on appeal.
Construction Commissioner v		[2023] FCAFC 40
Construction, Forestry,
Maritime, Mining and
Energy Union
[2021] FCA 363
[2021] FCA 525
Federal Court of
Australia- Sydney
4.	Construction, Forestry, Maritime, Mining and Energy Union v Fair	5 November 2020	On 5 November 2020, Mr Blakely (CFMMEU official and Second Respondent) arrived at an offsite meeting location (Site) pre-authorised by	First instance penalty decision 3 February 2022	Mr Ravbar: $4,660 for 1 x s.500- FWAct Mr Blakeley: $6,000 for 1 x s.500- FW Act

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
Work Ombudsman (South Bank Performing Arts Case Appeal) [2023] FCA 72 Federal Court of Australia- Queensland	Lendlease (the contractor) with 10-12 other people. Mr Blakely was informed he was not allowed on Site. Mr Blakely subsequently stepped towards the Lendlease foreman to gain access to the Site, and subsequently formed a barrier with his body to allow the group of people with him to enter the Site. Mr Blakely subsequently left, and returned with Mr Ravbar (CFMMEU official and Third Respondent). Both officials were again advised they were not allowed to enter the Site, but both proceeded to enter. The contravention of s500 of the FW Act by Mr Blakely and Mr Ravbar arose by reason of entry onto the Site without giving 24 hours’ notice and in contravention of requests from the site contractor, failing to comply with WHS requirements prohibiting authorised access, remaining on Site after being asked to leave, and (in respect of Mr Blakely) letting 10-12 people on Site who were not workers and had not undertaken a site induction.	(Egan J) [2022] FedCFamC2G 40 Federal Court Appeal Penalty decision on 10 February 2023	CFMMEU: $73,260 (2 x $36,630) for 2 x s.500- FW Act Note: The above penalties reflect a redetermination of penalty by Rangiah J of the Federal Court on appeal.
QUD 47 of 2022-
Rangiah J
Australian Building and
Construction
Commissioner v
Construction, Forestry,
Maritime, Mining and
Energy Union
[2022] FedCFamC2G
40
Federal Circuit Court
and Family Court – QLD
BRG161/2021 – Judge
Egan
5.	Fair Work Ombudsman	15 and 18	At various days on 15 May, 18 May, 13 June and 14 June 2018, CFMMEU officials Mr Beau Seiffert, Mr Te Aranui Albert, Mr Blake Hynes Mr Shaun Desmond, Mr Craig Davidson and Mr Anthony Harding entered the construction site area of the Logan Enhancement Project (Site). Once located on Site the CFMMEU officials failed or refused to leave the Site when requested and failed to produce their respective entry permits on request, and in so doing contravened s.500 of the FW Act.	Admission of liability Penalty decision on 30 January 2023	CFMMEU: $275,000 for 11 x s.500 – FWAct Beau Seiffert: $24,000 for 4 x s.500 – FW Act Te Aranui Albert: $10,000 for 2 x s.500 – FW Act Blake Hynes: $12,000 for 2 x s.500 – FW Act
v Construction,	May 2018,
Forestry, Maritime,	13 and 14
Mining and Energy	June 2018
Union (Logan
Enhancement Project)
[2023] FCA 36

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
Federal Court of	Shawn Desmond: $3,000 for 1 x s.500 – FW Act Craig Davidson: $2000 for 1 x s.500 – FW Act Anthony Harding: $2000 for 1 x s.500 – FW Act
Australia- Queensland
QUD 194 of 2020-
Collier J
6.	Fair WorkOmbudsman	On 14 May 2018 three CFMMEU officials, Jason O’Mara, Zachary Smith and Joshua Bolitho engaged in conduct during and leading up to an obstructive picket at the Constitution Place building site in London Circuit, Canberra, that gave rise to the admitted contraventions including parking cars in front of the main entrance of the project site, securing chains and locks on various gates, and blocking pedestrian and vehicle access to the main entrance. The conduct occurred whilst there was an industrial dispute before the Fair Work Commission.	Admission of liability First instance penalty decision on 28 July 2020 [2020] FCA 1070 (Redeterminati on) Penalty decision on 17 January 2023	Jason O'Mara: $12,600 for 1x 47(1)- the BCIIP Act. Zachary Smith: $12,600 for 1x 47(1)- the BCIIP Act. Joshua Bolitho: $8,400 for 1x 47(1)- the BCIIP Act. CFMMEU: $180,000 for 1x s47(1)- the BCIIPAct. Note: These proceedings were subject to an appeal and subsequent redetermination of penalty by Katzmann J on remittal.
(formerly Australian
Building and
Construction
Commissioner) v
Construction, Forestry,
Maritime, Mining and
Energy Union (The
Constitution Place
Case) (No 2)
[2023] FCA 13
Federal Court of
Australia- ACT
ACD 29 of 2019-
Katzmann J
Australian Building and
Construction
Commissioner v
Construction, Forestry,
Maritime, Mining and
Energy Union (The

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
Constitution Place Case) [2020] FCA 1070 Federal Court of Australia – ACT ACD29 of 2019 – Katzmann J
7.	Australian Building and	13 & 26 July	On 13 July 2018, CFMMEU delegate Dario Maloni and official Kane Pearson attended the Melb Uni Vet School site and led about 35 workers into the site sheds during working hours and held the door shut so that site management could not enter. After about 30 minutes, when the doors were unblocked, the senior project manager told the workers that the meeting was unlawful and directed them to return to work. After most of the workers returned to work, Mr Maloni physically prevented the remaining workers from leaving the sheds by blocking the doorway. On 26 July 2018, Mr Pearson, Mr Tzimas and Mr Maloni entered the lunch shed whilst workers were on a break and held a meeting, after which the workers did not return to work when their break ended at 9:50am. WorkSafe attended site after the representatives raised alleged safety issues and concluded that there was no reasonable cause for employees to be concerned for their safety and no reason for a cessation of work.	Admission of liability Penalty decision on 12 September 2022	CFMMEU: $360,000 (2 x $180,000) for 2 x s.46 – BCIIP Act Kane Pearson: $70,000 for 2 x s.46 – BCIIP Act Dario Meloni: $50,000 for 2 x s.46 – BCIIP Act Paul Tzimas: $15,000 for 1 x s.46 – BCIIP Act
Construction	2018
Commissioner v
Construction, Forestry,
Maritime, Mining and
Energy Union (The U-
Vet School Case)
[2022] FCA 1068
Federal Court of Australia – Victoria
VID300/2019 –
O’Callaghan J

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
8.	Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Pacific Highway Upgrade Case appeal [2023] FCA 202 Federal Court of Australia- New South Wales Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Pacific Highway Upgrade Case) (No 4) [2022] FedCFamC2G 608 Federal Circuit and Family Court - NSW SYG2015/2020 – Judge Humphreys	22 August 2019	On 22 August 2019, CFMMEU officials Dean Rielly and Paul Fitzpatrick contravened section 500 of the FW Act when they lawfully entered the Woolgoolga to Ballina Pacific Highway upgrade construction project in relation to workplace safety. While on the site, Mr Rielly and Mr Fitzpatrick intentionally positioned themselves between the rear of a concrete truck and the site of a concrete pour. By doing so, Mr Rielly and Mr Fitzpatrick prevented the concrete truck from reversing towards the concrete pour area to complete the pour. This caused the concrete pour to be abandoned and the contents of the concrete truck, amounting to 6m3, was dumped and rendered unusable.	Penalty decision on 4 August 2022 Liability decision on 23 May 2022 - [2022] FedCFamC2G 388 Federal Court Appeal Penalty decision on 13 March 2023 – [2023] FCA 202	CFMMEU: $100,800 (2 x $50,400) for 2 x s.500 – FWAct Dean Rielly: $8,820 for 1 x s.500 – FW Act Paul Fitzpatrick: $5,040 for 1 x s.500 – FW Act Note: this matter was subject to an appeal filed on 31 August 2022 by the respondents. On 13 March 2023, Justice Katzmann dismissed the appeal with no orders as to costs.
9.	Construction, Forestry, Maritime, Mining and	15 April 2020	On 15 April 2020, at the Cross River Rail Project, CFMMEU official Andrew Blakeley acted	Admission of liability	CFMMEU: $100,000 (2 x $50,000) for 2 x s.500 – FWAct

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
Energy Union v Fair Work Ombudsman (Boggo Road Cross River Rail Case) [2023] FCA 507 Federal Court of Australia – New South Wales QUD291/2022 - Justice Abraham Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Boggo Road Cross River Rail Case) [2022] FedCFamC2G 574 Federal Circuit Court and Family Court – QLD BRG365/2020 – Judge Vasta	improperly while exercising entry rights under Part 3-4 of the FW Act by: (a) refusing to provide his entry permit despite multiple requests; (b) making patronising counter-requests for excessive description of the entry permits; (c) breaching OHS site requirements, and acting contrary to instructions of the occupier, by entering the construction area of the site unaccompanied, and refusing to return; (d) standing in the path of a truck so as to delay it from proceeding down a road, whilst refusing requests to leave the area and claiming ‘I am just stretching my legs’; (e) walking towards a representative of the occupier with his chest puffed out in an aggressive stance; (f) making a homophobic slur to the site safety adviser that suggested the adviser was trying to look at his penis while in the toilet block; and (g) accessing and inspecting crib and meeting rooms against the occupier’s requests. On 15 April 2020, CFMMEU official Luke Gibson acted improperly while exercising entry rights under Part 3-4 of the FW Act by: (a) refusing to provide his entry permit despite multiple requests; (b) making patronising counter-requests for excessive description of the entry permits; (c) insulting the safety adviser with a homophobic slur that he was a ‘pumpkin eater’; (d) unreasonably refusing to deal with the occupier’s IR representative; (e) breaching OHS site requirements, and acting contrary to the occupier’s instructions, by entering the construction area of the site unaccompanied and refusing to return; and (f) in response to a request that he return to the pre-start area, turning out his pockets and saying ‘what do you think I am a dog?	Penalty decision on 28 July 2022 Appeal decision on 25 May 2023	Andrew Blakeley: $,7,000 for 1 x s.500 – FW Act Luke Gibson: $7,000 for 1 x s.500 – FW Act Note: The above penalties reflect a redetermination of penalty by Abraham J of the Federal Court on appeal.

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
You want me to pull my pocket out and lead me around like a dog?’.
10.	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union and Ors (250 East Terrace Case) [2022] FCA 760 Federal Court of Australia – SA SAD136/2020 – O’Sullivan J	16 October 2019	On 16 October 2019, approximately 30 people, including CFMMEU state secretary Andrew Sutherland and Andrew Sneath, a director of Adelaide based subcontractor Core-Form Pty Ltd, congregated outside the entrance gate of the 250 East Terrace Apartments construction site in Adelaide to protest about matters relating to a commercial dispute between Core-Form and the head contractor of the project. The protest lasted about 90 minutes. The protesters repeatedly heckled and harassed persons entering and leaving the site including a female labourer and the head contractor’s lawyer. The protesters also restricted a painter contractor from accessing the site in his vehicle.	Penalty decision 1 July 2022 Admission of liability	CFMMEU: $189,000 for 1 x s.47 - BCIIP Act Andrew Sutherland (CFMMEU official): $38,000 for 1 x s.47 - BCIIP Act Core-Form Pty Ltd: $132,000 for 1 x s.47 - BCIIPAct Andrew Sneath (Core-Form director): $25,000 for 1 x s.47 - BCIIP Act Note: this matter is subject to an appeal by the respondents.
11.	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Titan Cranes Case) [2022] FCA 774 Declarations and orders Federal Court of Australia – QLD	12 and 13 January 2021	On 12 January 2021, CFMMEU official Beau Seiffert contravened s.52(c) of the BCIIP Act by threatening to organise action against Titan Cranes & Rigging Pty Ltd and Redwood Construction Services 7 Pty Ltd at the 80 Ann Street, Brisbane project with intent to coerce Titan Cranes to transfer Mr Schatz, a Redwood employee who was working on the Brisbane Racecourse Project to the Cross River Rail Project (CRR Project) in the role of Health and Safety Representative (HSR). On each of 12 and 13 January 2021, CFMMEU delegates Warren Rapata and Darcy Murdoch each contravened s.52(c) of the BCIIP Act by organising action against Titan Cranes and Redwood, being a stoppage of work at the 443	Declarations and orders – 22 June 2022 Penalty decision - 16 June 2022 Admission of liability	CFMMEU: $750,000 for 5 x s.52(c) – BCIIP Act Beau Seiffert: $30,000 for 1 x s.52(c) – BCIIP Act Warren Rapata: $30,000 for 2 x s.52(c) – BCIIP Act Darcy Murdoch: $30,000 for 2 x s.52(c) – BCIIP Act

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
QUD433/2021 – Logan J	Queen Street, Brisbane project (in respect of Mr Rapata), and a stoppage of work at the 80 Ann Street, Brisbane project (in respect of Mr Murdoch), with intent to coerce Titan Cranes or Redwood to transfer Mr Schatz who was working on the Brisbane Racecourse Project to the CRR Project in the role of HSR.
12.	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FedCFamC2G 156 Federal Circuit Court and Family Court – QLD BRG625/2020 – Judge Vasta	30 April 2020	On 30 April 2020, while exercising entry rights under Part 3-4 of the FW Act at the Marine Parade Apartments Project, CFMMEU official Andrew Blakeley entered exclusion zones without authorisation and stood behind concrete trucks, blocking the delivery of concrete to concrete pumps and thereby: (a) intentionally hindered and obstructed persons at the Site; and (b) acted in an improper manner, in contravention of s.500. On 30 April 2020, while exercising entry rights at the Site, CFMMEU official Luke Gibson entered exclusion zones without authorisation, stood behind concrete trucks, blocking the delivery of concrete to concrete pumps, and engaged in abusive and intimidatory behaviour, and thereby: (a) intentionally hindered and obstructed persons at the Site; and (b) acted in an improper manner in contravention of s.500.	Penalty decision 11 March 2022 Admission of liability	CFMMEU: $85,000 for 2 x s.500 ($35,000 & $50,000) – FW Act Andrew Blakeley: $7,000 for 1 x s.500 – FW Act Luke Gibson: $10,000 for 1 x s.500 – FW Act
13.	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Next DC P2 Project Case) [2022] FCA 37	5 December 2019	On 5 December 2019, the CFMMEU contravened s.500 of the FW Act by reason of its permit holder, Mr Stephen Barry Parker, whilst exercising his entry rights in accordance with Part 3-4 of the FW Act at the NEXT DC P2 Project in Perth, WA, acting in an improper manner by: a) remaining on Site without an escort by a Multiplex representative; and	Penalty decision 31 January 2022 Admission of liability	CFMMEU: $18,000 for 1 x s.500 – FW Act

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
Federal Court of Australia – WA WAD197/2020 – Banks- Smith J	b) not complying with requests by Multiplex employees to move from where he was standing when the Multiplex employees were unloading doorframes from a truck.
14.	Australian Building and Construction Commissioner v Rielly (No 3) [2022] FedCFamC2G 1 Federal Circuit Court and Family Court – NSW SYG1031/2020 – Judge Driver	25 January, 4, 5 & 14 March 2019	CFMMEU official Dean Rielly contravened the FW Act by his conduct on 25 January, 4, 5 and 14 March 2019 in Coffs Harbour, NSW: s.348 by threatening to organise or take action against CPB Contractors (CPB) with intent to coerce it to engage in industrial activity by complying with a requirement of the CFMMEU that CPB’s employees working at its precast yard in North Boambee Valley become CFMMEU members and all labour hire workers at the Yard be covered by a CFMMEU EBA, s.355 by threatening to organise or take action against CPB with intent to coerce CPB to employ CFMMEU members and engage a labour hire independent contractor whose workers were covered by a CFMMEU EBA, s.346(b) by advising, encouraging or inciting CPB to take action against Telum Precast (Qld) Pty Ltd because Telum had not advanced the claims and interests of the CFMMEU by making a CFMMEU EBA or employing members of the CFMMEU, and s.340(1)(a)(ii) by advising, encouraging and inciting CPB to take adverse action against Telum because Telum had not exercised a workplace right by making a CFMMEU EBA.	Penalty decision 28 January 2022 Liability judgment on 12 February 2021: [2021] FCCA 43	CFMMEU: $80,000 for contraventions of ss.348, 355, 340 & 346 – FW Act Dean Rielly: $10,000 for contraventions of ss.348, 355, 340 & 346 – FW Act

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
15.	Australian Building and Construction Commissioner v Gutierrez [2022] FedCFamC2G 8 Federal Circuit Court and Family Court – NSW SYG1018/2020 – Judge Manousaridis	21 February 2019	On 21 February 2019, at a site that formed part of the Westconnex Stage 2: New M5 – Beverly Hills to St Peters Project, CFMMEU official Simon Gutierrez contravened s.500 of the FW Act by: (a) saying to two employees of CPB Contractors Pty Ltd (CPB) words to the effect of ‘shut up’ and ‘f**k off’ in an aggressive manner; (b) speaking in an aggressive and demeaning manner to one of those employees of CPB, including saying words to the effect of ‘[i]t’s not a f**king IR walk’; and (c) walking up to the same employee of CPB, standing approximately 20 centimetres away from him, and blowing cigarette smoke in his face. Mr Gutierrez contravened s.500 a second time on 21 February by: (a) entering into an isolation zone established on the Site in accordance with CPB’s WHS Management Plan, without authorisation; and (b) failing to comply with requests made by a CPB representative not to do so.	Penalty decision on 25 January 2022 Admission of liability	CFMMEU: $79,300 for 2 x s.500 (2 x $39,650) – FWAct Simon Gutierrez: $13,860 for 2 x s.500 (2 x $6,930) – FW Act
16.	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) (No 2) [2022] FCA 19 Federal Court of Australia – NSW	27 and 28 November 2018	On 27 November 2018 at a site on Bonaira St Kiama, NSW, CFMMEU official Gerasimos Danalis contravened s.500 of the FW Act by intentionally obstructing a concrete truck driver from completing delivery of his concrete load; obstructing the project workers from operating the pump to pump the concrete load; and hindering the site manager and a project manager from discharging their duties. Mr Danalis also intentionally obstructed two other concrete truck drivers from delivering concrete, thereby obstructing workers from continuing and completing the pour of a concrete slab and hindering the site manager, project manager, and a traffic controller from discharging their duties.	Penalty decision on 21 January 2022 Liability judgment on 10 August 2021 - [2021] FCA 920	CFMMEU: total - $170,000, comprising of: $80,000 for 2 x s.500; $50,000 for 1 x s.503; $20,000 for 1 x s.500; & $20,000 for 1 x s.500 – FWAct Gerasimos Danalis: total $11,000, comprising of: $6,000 for 2 x s.500; $3,000 for 1 x s.503; & $2,000 for 1 x s.500 – FWAct. Anthony Dimitriou: $3,000 for 1 x s.500 – FW Act. Note: this matter was subject to a successful appeal by the FWO (see [2023] FCAFC 63) and orders have been made for the

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
[2009] FCA 1040 (penalty) Federal Court - Kenny J [2010] FCAFC 39 (appeal) Federal Court of Australia Full Court Moore, Middleton and Gordon JJ [2010] HCATrans 324 (special leave disposition) High Court of Australia French CJ & Crennan J	21 February 2006	people as shop stewards and OHS officer respectively. The organiser threatened to have the crane crew shut down the crane and leave the site, which they ultimately did. His intention was to coerce the labour hire company, Hardcorp, to re-employ the former CFMEU shop stewards and OH&S officer.	September 2009 Appeal decision - 18 May 2010 Refusal of special leave to appeal 10 December 2010	$10,000 and declarations against Mates (for 3 contraventions of s.43 BCII Act)
161.	Gregor v Berardi & CFMEU [2010] FMCA 805 Federal Magistrates Court - O’Sullivan FM	7 October 2008	A CFMEU organiser in a meeting banned work by approximately 14 employees in the context of the dismissal of the site peggy and OH&S representative the previous day.	Agreed statement of facts and agreed penalties Penalty decision 20 October 2010	$30,000 comprising: $5,000 and declarations against Berardi (for 1 contravention of s.38 BCII Act) $25,000 and declarations against the CFMEU (for 1 contravention of s.38 BCII Act)
162.	Wotherspoon v CFMEU, Reardon and Hudson [2010] FMCA 786 Federal Magistrates Court	1 April 2009	Two CFMEU officials shut down the Walter and Eliza Hall Institute site in connection with a dispute with a head contractor over a height allowance.	Agreed statement of facts and agreed penalties proposed	$27,500 and declarations comprising: $22,500 and declaration against the CFMEU (for 1 contravention of s.38 BCII Act) $2,500 and declaration against Reardon (for 1 contravention of s.38 BCII Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
O’Sullivan FM	Penalty decision 11 October 2010	$2,500 and declaration against Hudson (for 1 contravention of s.38 BCII Act)
163.	White v CFMEU and McLoughlin [2010] FMCA 693 Federal Magistrates Court Burchardt FM	19 February 2008	A CFMEU organiser imposed a ban on steel fixing for a concrete pour by employees of a subcontractor. The ban interrupted the pour and was imposed to effect his intention to remove an elected OHS representative.	Agreed statement of facts 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) (35% of the applicable maximum)
164.	Hardwick v AMWU [2010] FCA 818 Federal Court Gordon J	29 November 2008 - 27 March 2009	At Patricia-Baleen Gas Plant site, various unions (including the CFMEU) and organisers took various actions (including threats, pickets and protests) with intent to coerce subcontractors at the site to enter union building agreements.	Agreed statement of facts and agreed penalties proposed Penalty decision 4 August 2010	$67,500 comprising: $9,000 against the CFMEU (for 1 contravention of s.44 BCII Act) $3,500 against Parker (CFMEU) (for 1 contravention of s.44 BCII Act) $15,000 against the AMWU (for 1 contravention of s.44 BCII Act) $5,000 against Warren (AMWU) (for 1 contravention of s.44 BCII Act) $14,000 against the AWU (for 1 contravention of s.44 BCII Act) $6,000 against Lee (AWU) (for 1 contravention of s.44 BCII Act) $11,000 against the CEPU (for 1 contravention of s.44 BCII Act) $4,000 against Mooney (CEPU) (for 1 contravention of s.44 BCII Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
165.	Williams v AMWU, CFMEU, Powell, Mavromatis & Pizarro [2010] FCA 754 Federal Court - Melbourne Jessup J	5 February – 29 April 2009	At the West Gate Bridge site, respondents authorised and organised industrial action, took action with intent to coerce John Holland to employ former employees of a subcontractor, and took action with intent to coerce John Holland and the subcontractor to make EBAs.	Agreed penalties proposed Penalty decision 28 July 2010	$1,325,000 comprising: CFMEU: $858,000 ($535,000 for 8 contraventions of s.43 BCII Act; $247,000 for 9 contraventions of s.44 BCII Act; $76,000 for 2 contraventions of s.38 BCII Act) Powell: $71,000 ($45,000 for 4 contraventions of s.43 BCII Act, $21,000 for 5 contraventions of s.44 BCII Act, $5,000 for 1 contravention of s.38 BCII) Stephenson: $71,000 ($45,000 for 5 contraventions of s.43 BCII Act $16,000 for 5 contraventions of s.44 BCII Act, $10,000 for 1 contravention of s.38 BCII) AMWU: $298,000 ($185,000 for 3 contraventions of s.43 BCII Act, $78,000 for 4 contraventions of s.44 BCII Act, $35,000 for 1 contravention of s.38 BCII) Mavromatis: $27,000 ($14,000 for 2 contraventions of s. 44 BCII Act, $7,000 for 1 contravention of s.43 BCII Act, $6,000 for 1 contravention of s. 38 BCII Act)
166.	Stuart v CFMEU [2009] FCA 1119 (first instance) Federal Court - Gray J [2010] FCAFC 65 (appeal) Federal Court of Australia Full Court -	19 September 2006 3 October 2006	A CFMEU shop steward refused to induct a subcontractor’s employees without a CFMEU EBA, stating that work to be done was CFMEU work, not AMWU work. He also organised a stop work meeting 2 weeks later, with intent to apply undue pressure on the contractor to make an EBA.	Agreed statement of facts in place Penalty decision 2 October 2009	On appeal: $25,000 (increased from $5,000) and declarations against the CFMEU (for 1 contravention of s.44 BCII Act with no additional penalty for 1 s.38 contravention)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
Moore, Besanko & Gordon JJ	Appeal decision: 8 June 2010	Declarations against Corbett (for 1 contravention of each of ss.44 and 38 BCII Act)
167.	Wotherspoon v CFMEU, Stephenson & Slater [2010] FMCA 184 Federal Magistrates Court Turner FM	30 April 2008	CFMEU organisers 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.	Agreed statement of facts & 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)
168.	Cozadinos v CFMEU & Salta MLG516/09 (No reported decision) Federal Magistrates Court - Burchardt FM	12 March 2008	A CFMEU OH&S representative made a false or misleading representation about the obligation to join the CFMEU to two workers on the site after inductions.	Agreed statement of facts & agreed penalty proposed Penalty order 22 February 2010	$7,000 comprising: $6,000 against the CFMEU (for 1 contravention of s.790 WR Act) $1,000 against Salta (for 1 contravention of s. 790 WR Act)
169.	Cozadinos v CFMEU & Ioannidis MLG624/2009 (No reported decision) Federal Magistrates Court - Burchardt FM	3 March 2008	A CFMEU organiser prejudiced two employees in their employment (telling them he would stop them from working at the site) because they were not members of the CFMEU.	Agreed statement of facts & agreed penalty proposed Penalty order 22 February 2010	$7,000 comprising: $6,000 against the CFMEU (for 1 contravention of s.797(3)(f) WR Act) $1,000 against Ioannidis (for 1 contravention of s.797(3)(f) WR Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
170.	Cozadinos v CFMEU, Berardi & Mates [2010] FCA 48 Federal Court Marshall J	8 March 2007	A CFMEU organiser engaged in unlawful industrial action and took action with intent to coerce a contractor to reinstate an employee.	Agreed statement of facts in place Penalty decision 9 February 2010	$45,000 comprising: $40,000 against the CFMEU ($20,000 for 1 contravention of s.38 BCII Act and $20,000 for 1 contravention of s.43 BCII Act) $5,000 against Mates ($2,000 for 1 contravention of s.38 BCII Act and $3,000 for 1 contravention of s.43 BCII Act)
171.	Wilson v Nesbit & CFMEU [2009] FCA 1574 Federal Court Dowsett J	23 June 2008	A CFMEU organiser made threats to a company to ban it from any building site in Australia and have it perform a workplace health and safety audit (costing at least $30,000) with intent to coerce the company to terminate its EBA and make a new EBA with the CFMEU.	Agreed statement of facts in place Penalty decision 23 December 2009	$49,000 comprising: $40,000 and declarations against the CFMEU (for 1 contravention of s.44 BCII Act.) $9,000 and declarations against Nesbit (for contravention of s.44 BCII Act)
172.	Gregor v CFMEU & Berardi [2009] FMCA 1266 Federal Magistrates Court O’Sullivan FM	19 July 2007	After a head contractor declined to be a party to a CFMEU EBA, a CFMEU organiser arranged for site workers to stop work and attend a midday meeting. The organiser told the attendees that the Site was being closed down and encouraged them to leave site and not perform further work that day.	Agreed statement of facts & agreed penalty. Penalty decision 16 December 2009	$8,500 comprising: $7,500 and declarations against the CFMEU (for 1 contravention of s.38 BCII Act) $1,000 and declarations against Berardi wholly suspended (for 1 contravention of s.38 BCII Act)
173.	John Holland v CFMEU, Travers, O’Grady & Reardon [2009] FMCA 1248 Federal Magistrates Court	24 March 2009	Three CFMEU officials at two sites within John Holland’s Tullamarine Airport project encouraged and directed the cessation of work by at least 100 workers.	Agreed statement of facts & agreed penalties proposed Penalty decision 14	$23,000 and declarations against the CFMEU (for 2 contraventions of s.38 BCII Act)

NO.	CASE DETAILS						DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
O’Sullivan FM						December 2009
174.	Williams v CFMEU [2009] FCA 223 (liability) (No 2) (2009) 182 IR 327; [2009] FCA 548 (penalty) Federal Court - Jessup J [2009] FCAFC 171 (appeal)						31 July 2006	A CFMEU organiser procured and threatened to procure a stoppage of work with intent to coerce a builder to employ or engage a building employee or contractor.	Liability decision 13 March 2009 Penalty decision 28 May 2009 Appeal decision 7 December 2009	On appeal, $42,500 comprising: $35,000 (reduced from $100,000) against the CFMEU (for 1 contravention of s.43 BCII Act) $7,500 (reduced from $15,000) against Mates (for 1 contravention of s.43 BCII Act)
Federal Court of Australia Full Court
Moore, Middleton and Gordon JJ
175.	John Holland Pty Ltd v Benstead & CFMEU [2009]FMCA 1065 Federal Magistrates Court Turner FM						11 March 2009 24 March 2009	On two separate occasions at an Epping construction site, a CFMEU officer visiting on site with OH&S concerns was involved in employees’ failure to work from morning onwards.	Agreed statement of facts & penalty Penalty decision 12 November 2009	$25,000 against the CFMEU (for 2 contraventions of s.38 BCII Act)
176.	Draffin v CFMEU [2007] FCA 2011 (Walton)						November 2005	A CFMEU delegate, CFMEU organiser and CFMEU branch secretary admitted to coercing a head contractor not to allocate traffic management responsibilities to a subcontractor whose employees were on AWAs, discriminating against the subcontractor and encouraging the head	Agreed statement of facts in place Walton penalty decision 10	On CFMEU penalty appeal, $132,750 comprising: $50,000 against Walton ½ suspended ($40,000 for 1 contravention of s.45 BCII Act, $10,000 for 1 contravention of s.298K(2)(d) WR Act)
	[2009] FCA 243
	(CFMEU first
instance)
NO.	CASE DETAILS						DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
[2009] FCAFC 120		contractor to terminate the subcontract because of the AWAs. The head contractor terminated the subcontract.	December 2007 CFMEU penalty decision – 17 March 2009 Appeal decision – 10 September 2009	$52,750 (increased from $22,750) against the CFMEU ($50,000 for 1 contravention of s.43 BCII Act, $2,000 for 1 contravention of s.45 BCII Act, $750 for 1 contravention of s.298P WR Act) $10,000 (increased from $2,000 wholly suspended) and declarations against Oliver ½ suspended ($8,000 for 1 contravention of s.43 BCII Act, $1,250 for 1 contravention of s.45 BCII Act and $750 for 1 contravention of s.298P WR Act) $10,000 (increased from $2,000 wholly suspended) against Benstead ½ suspended ($8,000 for 1 contravention of s.43 BCII Act, $1,250 for 1 contravention of s.45 BCII Act and $750 for 1 contravention of s.298P WR Act) and declarations (for 1 contravention of each of ss.45 BCII Act and 298P WR Act) $10,000 against Allen ½ suspended ($8,000 for 1 contravention of s.43 BCII Act, $1,250 for 1 contravention of s.45 BCII Act and $750 for 1 contravention of s.298P WR Act) and declarations (for 1 contravention of each of ss.45 BCII Act and 298P WR Act)
(appeal)
177.	Cruse v CFMEU and Anor [2009] FCA 787						6 October 2006	A CFMEU senior vice president held a stop work meeting with crane workers at 3:10 pm at a Melbourne site. Following this, a ban was placed on crane installation work by the workers and continued for until 4.40pm that day.	Agreed statement of facts & agreed penalties proposed	$15,000 comprising: $10,000 and declarations against the CFMEU (for 1 contravention of s.38 BCII Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
Federal Court Marshall J	Penalty decision 29 July 2009	$5,000 and declarations against Washington (for 1 contravention of s.38 BCII Act)
178.	Cozadinos v CFMEU & Anor [2008] FMCA 1591 (liability) [2009] FMCA 272 (penalty) Federal Magistrates Court - Burchardt FM	19 March 2007	A CFMEU shop steward prevented a delivery of materials.	Liability decision 10 December 2008 Penalty decision 7 May 2009	$5,000 and declarations against the CFMEU (for 1 contravention of s.38 BCII Act) and other declarations (for 1 contravention of s.494 WR Act) $4,600 and declarations against Johnston (for 1 contravention of s.38 BCII Act) and other declarations (for 1 contravention of s.494 WR Act)
179.	Cruse v CFMEU & Anor (2009)182IR 60 [2009] FMCA 236 Federal Magistrates Court - Turner FM	25 September 2006	34 employees walked off the job for 3.5 to 4 hours following a 30 minute stop-work meeting conducted by a CFMEU organiser during working hours.	Agreed statement of facts Penalty decision 9 April 2009	$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)
180.	Duffy v CFMEU [2008] FCA 1804 (No 2) [2009] FCA 299 Federal Court Marshall J	20 October 2005	A CFMEU organiser organised a ban on concreting & earthworks at the University Hill site because of the lack of a female toilet while a female worker was present and the absence of a site contamination report. Workers commenced work again in the afternoon of the following day.	Decision on liability 28 November 2008 Decision on penalty 31 March 2009	$5,500 against the CFMEU (for 1 contravention of s.38 BCII Act)
181.	Bovis Lend Lease Pty Ltd v CFMEU [2009] FCA 194 (liability)	19 and 23 February 2009	On 19 February 2009 and again on 23 February 2009 officials and members of the CFMEU obstructed and interfered with the passage of vehicles seeking to enter the New Royal	19 June 2009 (penalty) 4 March 2009 (liability)	Penalty of $75,000 against CFMEU for contempt.

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
(No 2) [2009] FCA 650 (penalty) Federal Court – Melbourne - Tracey J	Children’s Hospital Site, in breach of an order made by Marshall J on 19 February. The CFMEU were found to be in contempt.
182.	Alfred v Primmer & Ors (No 2) [2008] FMCA 1476 (2008)221FLR54 (liability) [2009] FMCA 158 (penalty) Federal Magistrates Court - Cameron FM	12 October 2006	A CFMEU organiser entered the Kiama High School site and advised or encouraged the head contractor’s foreman to stop an independent contractor from continuing to work as the independent contractor had no affiliation with the union and was involved in court proceedings over unpaid wages.	Liability decision 3 November 2008 Penalty decision 3 March 2009 The CFMEU & Applicant proposed that a mid-range would be appropriate.	$23,500 comprising: $10,000 and declarations against the CFMEU (for 2 contraventions of s.800(1)(a) WR Act) $10,000 and declarations against the CFMEU NSW (for 2 contraventions of s.800(1)(a) WR Act) $3,500 and declarations against Primmer (for 2 contraventions of s.800(1)(a) WR Act)
183.	Hadgkiss v CFMEU (No 3) [2007] FCA 87 (liability) (No 4) [2007] FCA 425; (penalty) Federal Court -Graham J [2008] FCAFC 22 (appeal) (No 5) [2008] FCA 1040 (remitted penalty) [2009] FCAFC 17 (appeal)	19 January 2004 17- 18 February 2004	A CFMEU organiser and a CFMEU site delegate told subcontractors at Wollongong and Fairy Meadows they could not work on the site unless they were financial members of the CFMEU.	Liability decision 9 February 2007 Penalty decision 26 March 2007 Appeal decision 5 March 2008 Remitted penalty decision 14 July 2008	On remitter from appeal, $35,250 comprising: $15,000 and declarations against the CFMEU (for 4 contraventions of s.298SC(c) WR Act) $15,000 and declarations against the CFMEU NSW (for 4 contraventions of s.298SC(c) WR Act) $1,250 and declarations against Casper (for 1 contravention of ss. 298SC(c) WR Act) $4,000 and declarations against Lane (for 3 contraventions of s.298SC(c) WR Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
Federal Court of Australia Full Court - North, Lander and Buchanan JJ	Appeal decision 26 February 2009
184.	Pine v Multiplex Constructions (Vic) P/L; Cruse v Multiplex Limited [2005] FCA 1428 (Multiplex) – Merkel J [2007] FCA 2015 (CFMEU first instance) – North J [2008] FCAFC 179; (2008)172FCR279; (2008)177IR 189 (appeal) Federal Court of Australia Full Court Gray, Goldberg and Jessup JJ	5 August 2003 6 August 2003	After an unrelated industry death in Shepparton, CFMEU shop stewards conducted a stop work meeting followed by a site safety audit at Multiplex’s Concept Blue site. On instruction by the CFMEU work was not done between 1:10 pm and 10:00 am next day. Through its shop stewards, the CFMEU made a claim for strike pay and organised and took industrial action with the intent to coerce Multiplex to make strike payments. Multiplex paid the strike pay.	Agreed statement of facts in place Multiplex penalty judgment 11 October 2005 CFMEU penalty judgment 17 December 2007 Appeal decision 5 November 2008	$4,000 against Multiplex (for 1 contravention of s.187AA WR Act). On appeal: $2,500 against the CFMEU (for 1 contravention of each of ss.187AB(1)(a) and 187AB(1)(b) WR Act) declarations against Thorson (for 1 contravention of each of ss.187AB(1)(a), 187AB(1)(b), and 187AA(2) WR Act)
185.	Cruse v CFMEU [2008] FCA 1267 (liability) (No 2) [2008] FCA 1637 (penalty) Federal Court Marshall J	May 2005	A CFMEU delegate made false and misleading statements regarding a Hamilton building contractor’s obligation to join the union and negated the contractor’s choice whether to enter into a certified agreement with the CFMEU. Union vicariously liable for breaches delegate.	Liability decision 22 August 2008 Penalty decision 5 November 2008	$4,000 against the CFMEU (for 1 contravention of s.170NC WR Act) and declarations (for 1 contravention of s.290SC WR Act) Declarations against Fry (for 1 contravention of each of ss.170NC and 298SC WR Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
186.	Standen v Feehan (2008)175IR 297; [2008] FCA 1009 (liability) (No 2)(2008) 177 IR 276; [2008] FCA 1574 (penalty) Federal Court Lander J	5 May 2004	A CFMEU organiser who parked his car to block access to a site, intentionally hindered and obstructed the project manager and a concrete contractor working on the site between 8:15 am and 10:00 am.	Liability decision 3 July 2008 Penalty decision 23 October 2008 Parties agreed acceptable penalty range of $1,200 to $1,600, being 60% to 80% of max penalty.	$1,300 and declarations against the CFMEU organiser (for 1 contravention of s285E WR Act)
187.	Alfred v Wakelin (No 1) [2008] FCA 1455 (CFMEU) Federal Court - NSW Jagot J	10 - 11 November 2005	CFMEU and AWU workers went on strike on the remainder of 10 November 2005 because they were asked to return to work when an authorised stop work meeting ran overtime.	Agreed statement of facts CFMEU penalty decision 25 September 2008	$8,000 against the CFMEU (for 1 contravention of s.38 BCII Act) $1,100 against Wakelin (for 1 contravention of s.38 BCII Act)
188.	Stuart-Mahoney v CFMEU (2008)177IR 61 [2008] FCA 1426 Federal Court Tracey J	6-13 October 2005	A CFMEU delegate and organiser raised for consideration, encouraged and supported an overtime ban with intent to coerce Hooker Cockram to employ an apprentice on the police and law courts complex in Morwell, Victoria.	Agreed statement of facts Penalty decision 19 September 2008	$63,000 comprising: $55,000 and declarations against the CFMEU ($35,000 for 1 contravention of s.43 BCII Act, $20,000 for 1 contravention of s.38 BCII Act) $8,000 and declarations against Parker wholly suspended ($6,000 for 1 contravention of s.43 BCII Act, $2,000 for 1 contravention of s.38 BCII Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
189.	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 Joseph McDonald and organiser Michael Powell. A week later, Powell conducted a meeting and 20 workers subsequently went on strike for 24 hours. The parties agreed that that the CFMEU should be ‘‘taken to have engaged in the First Strike action”.	Agreed statement of facts Penalty decision 23 May 2008	$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)
190.	A & L Silvestri Pty Ltd v CFMEU [2007] FCA 1047 (liability) [2008] FCA 466 (penalty) Federal Court Gyles J	20 October 2003 21 October 2003	Three CFMEU and CFMEU (NSW) organisers took unprotected industrial action and threatened further industrial disruption against a head contractor and an earthmoving subcontractor on a Wollongong site because they did not have industrial agreements with the CFMEU. The officials also threatened to shut down the site if the subcontractor was not removed. Union vicariously liable.	Liability decision 13 July 2007 Penalty decision 11 April 2008 The max possible penalty for the Union was $11,000 & $2,200 for Lane.	$7,300 comprising: $5,500 and declarations against the CFMEU (for 1 contravention of s.170NC WR Act) $1,800 and declarations against Lane (for 1 contravention of s.170NC WR Act) In addition, the CFMEU was ordered to pay damages of $23,000 plus interest
191.	Cahill v CFMEU [2008] FCA 495 Federal Court Marshall J	11, 13, 14 & 18 May 2004	Through its organiser and delegate, the CFMEU made a claim for strike pay and organised, threatened and took industrial action – including a ban at a separate site - with intent to coerce Bovis to pay strike pay. Bovis paid the strike pay.	Agreed statement of facts Penalty judgment 11 April 2008	$4,000 against the CFMEU (for 1 contravention of each of ss.187AB(1)(a) and 187AB(1)(b) WR Act) Declarations against Setka and Tadic (for 1 contravention of each of ss.187AB(1)(a) and 187AB(1)(b) WR Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
192.	Cruse v CFMEU & Anor [2007] FMCA 1873 Federal Magistrates Court Burchardt FM	22-24 September 2005	Unlawful industrial action organised by the CFMEU involving 288 people at the Roche Mining Mineral Sands Separation Plant in Hamilton. Following a hearing in the AIRC on 27 September 2005, the workers returned to work at 1:30 p.m. on 28 September 2005. The workers were on strike for 2.5 days.	Agreed statement of facts Penalty decision 14 November 2007	$35,000 and declarations against the CFMEU (for 1 contravention of each of s.38 BCII Act and EBA) $7,000 and declarations against Stewart (½ suspended) (for 1 contravention of each of s.38 BCII Act and EBA)
193.	Alfred v Lanscar [2007] FCA 1001; (2007)167IR 320 Federal Court Buchanan J	9 February 2005	A CFMEU organiser advised, encouraged or incited Papas Painting to refuse to engage painters because they were not members of the union. Lanscar said that unless the painters joined the union they could not work on the project and he would “direct” the head contractor to use other painters. Also, Mr Lanscar threatened to take industrial action against Papas Painting with the intent to coerce it to refuse to use the painters.	Agreed statement of facts & penalties proposed Penalty decision 4 July 2007	$12,000 comprising: $10,000 and declarations against the CFMEU (for 1 contravention of each of ss.298S(2)(a) and 298S(2)(b) WR Act) $2,000 and declarations against Lanscar (for 1 contravention of each of ss.298S(2)(a) and 298S(2)(b) WR Act)
194.	Ponzio v B & P Caelli Constructions Pty Ltd [2006] FCA 1221 (first instance) Federal Court - North J [2007] FCAFC 65; (2007)158FCR543; (2007)162IR 444 (appeal) Federal Court of Australia Full Court	5, 6, 25 & 26 August 2003	After an unrelated industry death in Shepparton, Caelli’s employees attended a stop work meeting followed by a site safety audit at Multiplex’s Concept Blue site. Work was stopped from that day until 10:00 am next day. Through its shop stewards and organisers, the CFMEU made a claim for strike pay and organised and took industrial action. Caelli did not initially pay the strike pay. On 25 August the CFMEU organised bans on the use of forklifts and access to balconies - with intent to coerce Caelli to make strike payments. Caelli paid the strike pay.	Agreed statement of facts Caelli and CFMEU penalty judgment 11 September 2006 On appeal, agreed penalty proposed for Caelli Appeal decision 14 May 2007	Notwithstanding the appellant and Caelli had agreed upon the penalty to be imposed upon Caelli, the primary judge dismissed the application against Caelli without penalty. He also dismissed the application against the Union and the third and fourth respondents without penalty. On appeal, $11,000 comprising: $6,000 against Caelli wholly suspended (for 1 contravention of s.187AA WR Act) $5,000 and declarations against the CFMEU (for 1 contravention of s.187AB(1)(a) WR Act and 3 contraventions of s.187AB(1)(b) WR Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
Marshall, Lander and Jessup JJ	Declarations against Crnac and Spernovasilis (for 1 contravention each of s.187AB(1)(a) WR Act and 3 contraventions each of s.187AB(1)(b) WR Act)
195.	Hadgkiss v Sunland Constructions Pty Ltd [2006] FCA 1566 Hadgkiss v CFMEU [2007] FCA 346; (2007) 158 FCR193; (2007) 161 IR 317 Hadgkiss v CFMEU [2007] FCA 524; (2007) 162 IR 385 Federal Court Dowsett J (Sunland) Kiefel J (CFMEU)	8 September 2004 4 November 2004	A CFMEU delegate told three employees there was no way they could work at the Sunland joinery unless they joined the CFMEU. In a later conversation with a BIT Inspector he explained the site was a union shop. A Sunland employee represented to one of the employees that he had to be a member of the CFMEU. Sunland dismissed the employee because he was not a member of the CFMEU.	Agreed statement of facts for Sunland Sunland penalty decision 25 October 2006 CFMEU liability decision 14 March 2007 CFMEU penalty decision 26 March 2007	$25,300 comprising: $6,000 and declarations against the CFMEU (for 1 contravention of s.298SC(c) WR Act) $3,000 and declarations against the CFMEU QLD (for 1 contravention of s.298SC(c) WR Act) $300 against Oskam (for 1 contravention of s.298SC(c) WR Act) $15,000 and declarations against Sunland ($12,000 for 1 contravention of s.298K WR Act and $3,000 for 1 contravention of s.298SC(c) WR Act) $1,000 and declarations against Eshraghi (for 1 contravention of s.298SC(c) WR Act)
196.	Leighton Contractors Pty Ltd v CFMEU (No 4) [2006] WASC 317; (2006)164IR 375 Supreme Court of Western Australia Le Miere J	9 March 2005 – February 2006	Rolling series of unlawful industrial actions constituted by unauthorised meetings and strikes or work bans on the New Metro Rail City Project, Perth. The conduct involved a series of stop work meetings and short periods of industrial action, including a single day of industrial action to attend a CFMEU rally.	Agreed statement of facts & agreed penalties proposed in consent orders Penalty decision 3 November 2006	$150,000 comprising: $90,000 against the CFMEU (for 18 contraventions of s.38 BCII Act) $30,000 against the CFMEUW (for 5 contraventions of s.38 BCII Act) $30,000 against Joseph McDonald (for 16 contraventions of s.38 BCII Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
197.	Martino v CFMEU and Maher (No. T02692326) Melbourne Magistrates Court Magistrate Hawkins	26 October 2004 28 October 2004	A CFMEU delegate prevented a subcontractor (Civiltest) from entering the Allegro Apartments site at Footscray, Melbourne, to perform soil testing unless Civiltest agreed to enter an EBA with the CFMEU. The conduct was done with the intent to coerce the subcontractor to enter into an agreement with the union with intent to prevent subcontractor from performing work unless agreement was made.	Agreed statement of facts Penalty judgment 10 May 2006	$13,950 comprising: $13,500 against the CFMEU (for 1 contravention of s.170NC WR Act) $450 against Maher (for 1 contravention of s.170NC WR Act)
198.	Alfred v Walter Construction Group Limited [2005] FCA 497 Federal Court Branson J	April 2003	The CFMEU, one of its organisers and one of its site delegates threatened to disrupt the work of a major subcontracting company at the Wollongong Sewerage Treatment Plant Project, NSW because the subcontractor chose not to enter the CFMEU endorsed federal pre-reform certified agreement. The CFMEU engaged in conduct calculated, and effective, to prevent the subcontractor from continuing work on the site following unsuccessful negotiations for an EBA.	Agreed statement of facts Penalty decision 3 May 2005	$7,500 and declarations against the CFMEU (for 3 contraventions of s.170NC WR Act) Note: The applicant discontinued proceedings against all other defendants other than the CFMEU.
199.	Hadgkiss v Blevin [2004] FCA 697 (liability) [2004] FCA 917 (penalty) Federal Court Conti J	November 2002	The CFMEU, one of its organisers and one of its site delegates at the Clifton Apartments building at Pyrmont, NSW, coerced an employee of a building contractor to join the CFMEU. The employee initially refused to join the union but the employer subsequently paid his union dues on his behalf.	Liability decision 1 June 2004 Penalty decision 13 July 2004	$5,500 against the CFMEU (for 1 contravention of s.298P(3) WR Act) $1,100 against McGahan (for 1 contravention of s.298P(3) WR Act) $1,100 against Blevin (for 1 contravention of s.298P(3) WR Act)
200.	Hamberger, Employment Advocate v CFMEU	29 January 1999 26 February 1999	The CFMEU and its site organisers on two separate occasions attempted to get an employer to remove an employee because the employee had refused to join the CFMEU.	Liability decision 22 December 2000	On appeal, $12,750 comprising: $3,000 (reduced from $7,500) and declarations against the CFMEU (for 1 contravention of each of ss.298P(3)(a) and 298P(3)(b) WR Act)

NO.	CASE DETAILS	DATE OF CONDUCT	NATURE OF CONDUCT	DATE OF JUDGMENT	PENALTIES AND CONTRAVENTIONS
[2000] FCA 1923; (2000)103IR 249 (liability) [2002] FCA 586 (penalty) [2003] FCAFC 38; (2003)127FCR309; (2003)125IR 183 (appeal) Federal Court - Cooper J Federal Court of Australia - Full Court Spender, Drummond and Marshall JJ	The CFMEU had threatened to engage in unlawful industrial action if the employee’s employer did not remove the employee from site.	Penalty decision 9 May 2002 Appeal decision	$7,500 and declarations against the BLF QLD (for 1 contravention each of s.298P(3)(a) and 298P(3)(b) WR Act) $1,500 and declarations against McHugh (for 1 contravention each of s.298P(3)(a) and 298P(3)(b) WR Act) $750 and declarations against Ravbar (for 2 contraventions of s.298P(3)(a) and 298P(3)(b) WR Act)