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 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, 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
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
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).
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.
These reasons explain the relief granted.
CONTEXT
The following is a summary of the admitted facts and unchallenged evidence before the Court.
The parties and relevant actors
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
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.
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.
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.
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.
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
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.
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.
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.
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).
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.
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
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.
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
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.
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
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
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
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
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
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.
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).
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
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.
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.
No witness was required for cross-examination at the hearing.
THE CONTRAVENTIONS
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.
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).
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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
The Court’s power to impose pecuniary penalties in respect of the established contraventions resides in s.546(1) of the Act.
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.
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.
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
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].
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.
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.
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.
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
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.
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.
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].
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.
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).
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.
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.
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).
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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
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
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.
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).
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
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.
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
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
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].
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.
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).
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
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
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)
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
Construction, Forestry,
Maritime, Mining and
Energy Union
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)
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)
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)
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)
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)
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)
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
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)
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
(penalty)
Federal Court - Kenny J [2010] FCAFC 39
(appeal)
Federal Court of Australia Full Court
Moore, Middleton and Gordon JJ
(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
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
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
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
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
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
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
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
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
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
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
(liability)
(No 2) (2009) 182 IR
327; [2009] FCA 548
(penalty)
Federal Court - Jessup J
(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
(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)
(CFMEU first
instance)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
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
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
(liability)
(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
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
(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
(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)
(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
(appeal)
(No 5) [2008] FCA 1040
(remitted penalty)
(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
(Multiplex) – Merkel J
(CFMEU first instance) – North J
(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
(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;
(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
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
(liability)
(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
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
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)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
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
(liability)
(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)103IR 249
(liability)
(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)
- AGLC
- Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FedCFamC2G 1060
- Case
- [2023] FedCFamC2G 1060
- Decision Date
CaseChat Overview and Summary
The Court was required to determine the appropriate level of penalty for each respondent. It needed to consider factors such as the nature and seriousness of the contraventions, the level of cooperation and contrition shown by the respondents, and the financial capacity of the CFMMEU. The Court also had to decide whether a personal payment order should be imposed on Mr Tzimas, requiring him to personally contribute to the penalty. The Court's discretion in determining the penalties was broad, guided by the principles of general and specific deterrence, as well as the totality of the penalties imposed.
The Court concluded that the conduct of both Mr Tzimas and the CFMMEU was objectively serious, reflecting a disregard for the legal framework intended to balance the rights of union officials with the rights of employers and site managers. While Mr Tzimas had expressed regret and had participated in some training, the Court found that his previous history of similar contraventions warranted a penalty that served as a specific deterrent. The Court also noted the CFMMEU's extensive history of contraventions, which indicated a need for general deterrence. The Court determined that the penalties proposed by the FWO were excessive, as they would essentially double the punishment for each contravention. Instead, the Court imposed penalties that were sufficient to deter future contraventions without being disproportionate. For Mr Tzimas, the penalty was set at $10,500, and for the CFMMEU, it was set at $62,000. Additionally, the Court ordered that Mr Tzimas personally pay 30% of his penalty, reflecting his individual responsibility for the contraventions.
The Court found that the contravening conduct was not only serious but also indicative of a broader pattern of defiance against the Act by both Mr Tzimas and the CFMMEU. The Court emphasised the importance of maintaining the integrity of the legal framework governing union activities on private premises. The penalties, while significant, were deemed necessary to ensure compliance with the law and to uphold the rights of all parties involved in workplace safety and industrial relations. The Court also highlighted the need for personal accountability, particularly given Mr Tzimas' history of similar misconduct.
The Court made the following orders: The CFMMEU and Mr Tzimas were to pay pecuniary penalties of $62,000 and $10,500 respectively. Mr Tzimas was to personally pay 30% of his penalty, amounting to $3,150. The Court did not order any costs against the respondents.
Orders
Orders of the court
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
24.
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
25.
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.
26.
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).
27.
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
28.
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.
29.
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.
30.
No witness was required for cross-examination at the hearing.
THE CONTRAVENTIONS
31.
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.
32.
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).
33.
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.
34.
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
35.
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
36.
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.
37.
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.
38.
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.
39.
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.
40.
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.
41.
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.
42.
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.
43.
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.
44.
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
45.
The Court’s power to impose pecuniary penalties in respect of the established contraventions resides in s.546(1) of the Act.
46.
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.
47.
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.
48.
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
49.
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].
50.
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.
51.
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.
52.
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.
53.
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
54.
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.
55.
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.
56.
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].
57.
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.
58.
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).
59.
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.
60.
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.
61.
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).
62.
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 The Beams 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.
63.
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.
64.
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.
65.
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.
66.
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
67.
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.
68.
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.
69.
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.
70.
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.
71.
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
72.
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.
73.
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
74.
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.
75.
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.
76.
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.
77.
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.
78.
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.
79.
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
80.
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
81.
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.
82.
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).
83.
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
84.
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.
85.
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
86.
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
87.
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].
88.
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.
89.
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).
90.
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
91.
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 FW Act.
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 FW Act on 23 July 2018; and
one penalty of $5,000.00 for 1 x
s.500 FW Act 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 BCIIP Act contravention
$150,000 for 1 x 54 BCIIP Act 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 BCIIP Act contravention
$18,000 for 1 x 54 BCIIP Act 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- FW Act
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 –
FW Act
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 Work Ombudsman
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 BCIIP Act.
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 – FW Act
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 – FW Act
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 - BCIIP Act
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) – FW Act
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 – FW Act
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 – FW Act.
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
NSD2057/2019 –
Katzmann J
On 27 November, Mr Danalis contravened s.503 of the FW Act by taking action to: (a) stop the pour of a concrete slab on the project; (b) stop concrete agitator trucks from entering the site; (c) shut down the site; and (d) determine whether or not the site, or part of it, was safe being reckless as to whether the impression was given that he and two other union officials were authorised by Part 3-4 of the FW Act to do so when they were not authorised.
On 28 November:
Mr Danalis contravened s.500 by acting in an improper manner at the site by refusing to comply with a reasonable request that he undertake a visitor’s induction and then entering the site unaccompanied.
CFMMEU official Anthony Dimitriou contravened s.500 by acting in an improper manner by refusing to comply with a reasonable request to undertake a visitor’s induction and entering the site unaccompanied.
proceedings to be remitted to the primary judge for redetermination of the penalties to be imposed on the CFMMEU and Mr Dimitriou (currently pending).
17.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Morphettville Park Case)
[2021] FCA 1640
14 February
2020
On 20 February 2020, while inspecting a building site at the Morphettville Park Sports Club in SA, and while exercising rights in accordance with Pt 3-4 of the FW Act, CFMMEU official Michael Jackson contravened s.500 by acting in an aggressive and abusive manner during a discussion with a worker performing work as a cladder and during a discussion with the Project Manager.
While inspecting some scaffolding Mr Jackson had a conversation with the worker. When asked by the worker what was the matter with the scaffold,
Penalty decision on 23 December 2021
Admission of liability
CFMMEU: $27,500 for 1 x s.500 – FW
Act
Michael Jackson: $2,500 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 – SA
SAD152/2020 – White J
Mr Jackson said ‘You should know that. It’s your job. If you don’t, you’re an idiot.’ When the worker replied ‘That’s not how you should speak to people’, Mr Jackson said in an aggressive manner ‘I'll speak to you however the f..k I want.’ Mr Jackson then moved towards the worker and said: ‘You keep going, you'll never work in South
Australia again’.
During a discussion with the Project Manager, Mr Jackson said ‘What’s your f**king role here? Who runs the show on this Site? The safety is bad’.
18.
Australian Building and Construction Commissioner v Hall (The Wheeler Cranes Case)
[2021] FCA 1480
Federal Court of Australia – NSW
NSD2137/2019 –
Abraham J
18, 19 and
22 October
2018
On 18, 19 and 22 October 2018, in response to stalled EBA negotiations, groups of protestors dressed in CFMMEU branded clothing, waving CFMMEU flags and banners, and some operating loudspeakers gathered at the Kooragang Coal Terminal, Newcastle TAFE site and San Clemente High School site in Newcastle. Wheeler Cranes had been engaged to undertake crane lifting services and there was at least one Wheeler Cranes crane on each site.
CFMMEU officials Brendan Holl and Justin Hobson were present at each site and engaged in conduct including:
leading groups of protestors, who were at various times blocking access and egress from the sites,
refusing to leave and continuing to blockade the sites unless Wheeler’s crane was removed from the site, and
exercising a right of entry, identifying alleged safety issues with Wheeler’s crane & refusing to allow the crane to undertake its duties.
Penalty decision on 30 November 2021
Admission of liability
CFMMEU: total - $460,000, comprising of: $260,000 for 1 x s.52(b) - BCIIP Act;
$100,000 for 2 x s.355(b) - FW Act ($50,000 each); and $100,000 for 2 x
s.500 - FW Act ($50,000 each)
Brendan Holl: total - $61,600, comprising of: $29,000 for 1 x s.52(b) - BCIIP Act; $17,600 for 2 x s.355(b) - FW
Act - ($8,800 each); and $15,000 for 2 x
s.500 - FW Act ($7,500 each)
Justin Hobson: total - $33,000, comprising of: $21,000 for 1 x s.52(b) - BCIIP Act; and $12,000 for 2 x s.500 - FW Act ($6,000 each)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
On 19 October at the San Clemente site, Mr Holl said to management, “No you need to pack up the crane and remove it from the site. We are not leaving until the crane is gone.” On 22 October at the Kooragang Coal Terminal, Mr Holl told site managers “It will get ugly today if Wheeler Cranes come on site”.
19.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468
Federal Court of Australia – WA
WAD185/2019 –
McKerracher J
15 February
2019
On 19 February 2019 CFMMEU officials John Windus and Stephen Parker attended the construction site for the Doubletree Hilton Hotel over issues related to scaffolding. When asked by the safety supervisor to accompany him to inspect the scaffolding, both officials ignored his request and headed in the opposite direction. The CFMMEU admitted that, in ignoring this direction, Mr Windus’ and Mr Parker’s conduct was improper and contravened s.500 of the FW Act.
During an exchange with the safety supervisor over materials left on the floor, Mr Windus said in a raised voice: ‘You pick this up or I’ll stand here all day.’ When complaining about materials on the floor, Mr Windus made reference to ‘third world’, which the supervisor interpreted to imply a racist slur (although Mr Windus did not intend that implication).
The CFMMEU admitted that Mr Windus acted in an improper manner by acting unreasonably and disrespectfully in raising his voice at the supervisor, by being insensitive and inconsiderate to the supervisor in making a reference to the
‘third world’, and by using foul language in the supervisor’s presence during the site visit.
Penalty decision on 24 November 2021
Admission of liability
CFMMEU: $23,000 for 1 x s.500 – FW
Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
20.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) [2021] FCA 1414
Federal Court of Australia – VIC
VID625/2020 – Kerr J
ABCC v CFMMEU
[2022] FCAFC 138 VID746/2021
Full Court of the Federal Court of Australia
Logan, Rangiah & Anderson JJ
3 and 4 December 2019
Works had been scheduled to lift and install five bridge beams weighing 16 tonnes each to construct a bridge at the West Gate Tunnel Project in Melbourne.
The road had been closed from 9.30pm to 4.00am to allow the works to occur on 3 and 4 December 2019. The bridge works were unable to proceed after CFMMEU officials Paul Tzimas and Ronnie Buckley entered the project and positioned themselves in an exclusion zone, making it unsafe for the head contractor to lift the bridge beams into place.
Despite repeated requests from management, the officials refused to leave. The head contractor called WorkSafe and Victoria Police to attend the site to resolve the dispute. The WorkSafe Inspector found there was no imminent risk to the health or safety of workers that would justify works stopping. When the WorkSafe Inspector asked the officials to leave the exclusion zone and allow work to continue they accused him of being a “lap dog”, “corrupt”, “incompetent” and a “disgrace”.
The CFMMEU officials also accused Victoria Police officers of being on the head contractor’s “payroll”, acting as “lap dogs” and demonstrating “corruption at its finest”.
Penalty decision on 16 November 2021
Admission of liability
Full Court appeal – orders – 15
August 2022 -
[2022] FCAFC
138
The following penalty orders made on 16 November 2021 were set aside by the Full Court – see note below:
CFMMEU: penalties totalling $63,000 for 4 x s.500 – FW Act
Paul Tzimas: penalties totalling $8,820 for 3 x s.500 – FW Act
Ronnie Buckley: $3,780 for 1 x s.500 FW Act (wholly suspended)
Note: on 15 August 2022, the Full Court set aside the orders made by the primary judge on 16 November 2021 (following an appeal by the ABCC). The proceeding has been remitted for rehearing - see [2022] FCAFC 138.
21.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the
30 April 2018
1 May & 2
May 2018
On 30 April, 1 May and 2 May 2018, CFMMEU official Kurt Pauls contravened s.494(1) of the FW Act by exercising a State or Territory OHS right by entering the construction site area of the Toowoomba Second Range Crossing Project when he was not a permit holder under the FW Act. CFMMEU official Michael Davis contravened
s.494 on 2 May 2018 by exercising a State or
Penalty decision on 17 September 2021
Admission of liability
CFMMEU: total - $75,000 (3 x $25,000)
for 6 x 494 & 12 x s.500 – FW Act
Kurt Pauls: total - $15,000 (3 x $5,000) for 4 x s.494 – FW Act
Beau Seiffert: total - $8,000 (2 x $4,000) for 2 x s.500 – FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Toowoomba Bypass Case) [2021] FCA 1128
Federal Court of Australia – QLD
QUD785/2018 –
Rangiah J
Territory OHS right when he was not a permit holder.
On 30 April and 1 May 2018, CFMMEU official Beau Seiffert contravened s.500 of the FW Act when exercising a State or Territory OHS right, by acting in an improper manner by: (a) refusing a request by the occupier to produce his Federal entry permit for inspection; and (b) failing to comply with requests from the occupier to leave the Site.
On 1 May 2018, CFMMEU official Te Aranui Albert contravened s.500 of the FW Act when exercising a State or Territory OHS right, by acting in an improper manner by: (a) refusing a request by the site occupier to produce his Federal entry permit for inspection; and failing to comply with requests from the occupier to leave Site.
On 1 May and 2 May 2018, CFMMEU official Blake Hynes contravened s.500 when exercising a State or Territory OHS right, by acting in an improper manner by: (a) refusing a request by the occupier to produce his Federal entry permit for inspection; & (b) failing to comply with requests to leave Site.
On 2 May 2018, CFMMEU officials Shaun Desmond, Craig Davidson and Justin Steele contravened s.500 of the FW Act when exercising a State or Territory OHS right, by acting in an improper manner by: (a) refusing a request by the occupier to produce their Federal entry permits for inspection; and (b) failing to comply with requests to leave the Site.
Te Aranui Albert: $4,000 for 1 x s.500 - FW Act
Blake Hynes: total - $8,000 (2 x $4,000) for 3 x s.500 – FW Act
Shaun Desmond: $3,000 for 2 x s.500 – FW Act
Craig Davidson: $2,000 for 2 x s.500 – FW Act
Justin Steele: $3,000 for 2 x s.500 – FW Act
Michael Davis: $3,000 for 2 x s.494 – FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
22.
CFMMEU v ABCC (The
Monash Freeway Widening Case)
[2022] FCAFC 59
Full Court of the Federal Court of Australia
Bromberg, Charlesworth & McElwaine JJ
ABCC v CFMMEU (The
Monash Freeway Widening Case) (No 2)
[2021] FCA 1101
Federal Court of Australia – VIC
VID496/2018 – Snaden J
29 & 30 April
2017
In the evening and morning of 29 and 30 April 2017, CFMMEU official James Simpson attended the Eumemmering Creek Site. He exercised a State or Territory OHS right under the FW Act and:
contravened s.499 of the FW Act by failing to comply with reasonable requests that he abide by occupational health and safety requirements (by remaining on site despite not wearing safety glasses or full-length, white reflective overalls, and moving about unescorted); and
acted in an improper manner in contravention of s.500 of the FW Act in that he: (i) contravened s.499; (ii) refused multiple Fulton Hogan demands that he vacate the site; and
(iii) by his presence and conduct, diverted the attention of multiple managers from tasks they would otherwise have been focused on.
Full Court appeal decision – 11
April 2022
Penalty decision – 14 September 2021
Liability decision - ABCC v CFMMEU (The
Monash Freeway Widening Case) [2020] FCA 1727
CFMMEU: $21,600 for 1 x s.500 (also contravened s.499) – FW Act
James Simpson: $3,240 for 1 x s.500 (also contravened s.499) – FW Act
Note: an appeal by the respondents was allowed. The Full Court set aside penalties in respect of one contravention of s.500.
23.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case)
[2021] FCA 951
Federal Court of Australia – SA
3 April 2019,
23 May
2019, 24
May 2019,
20 June
2019
On 3 April 2019, the CFMMEU, Alex Tadic, Anthony Sloane and Adrian McManus (CFMMEU officers), contravened ss.345, 497 and 500 of the FW Act by:
recklessly making a false or misleading statement to Watpac that they were not required to produce their permits for inspection when exercising a State OHS right; and
failing to produce their permits when requested.
Penalty decision – 13
August 2021
Admission of liability
CFMMEU: $390,500 for 3 x s.345, 2 x s.497, 1 x s.503, 7 x s.500 – FW Act
Anthony Sloane: $5,950 for 1 x s.345 and 1 x s.497 – FW Act
Clarence Fellowes: $9,300 for 1 x s.503 and 3 x s.500 – FW Act
Desmond Savage: $4,500 for 1 x s.500 – FW Act
Te Aranui Albert: $5,000 for 1 x s.500 – FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
SAD60/2020 – White J
On 23 May 2019, the CFMMEU and Clarence Fellowes (CFMMEU officer) contravened ss.503 and 500 of the FW Act by:
being reckless as to whether he gave the impression to a Watpac representative that he was authorised under Part 3-4 of the FW Act to enter the site to exercise a State OHS right without producing his permit; and
failing to comply with a request from Watpac to attend the site office.
On 24 May 2019, the CFMMEU, Mr McManus and Mr Fellowes contravened s.500 of the FW Act by failing to comply with a request from Watpac to attend the site office.
On 20 June 2019, Desmond Savage and Te Aranui Albert (CFMMEU officers), contravened
s.500 by swearing at, and speaking in aggressive manner, towards a Watpac representative.
Alex Tadic: $3,500 for 1 x s.345 – FW Act
Adrian McManus: $9,500 for 1 x s.345,1 x s.497 and 2 x s.500 – FW Act
24.
Australian Building and Construction Commissioner v Parker
[2021] FCA 704
Federal Court of Australia – VIC
VID494/2020 – Kerr J
11 July 2019
On 11 July 2019, the CFMMEU and Steven Parker (CFMMEU shop steward and HSR), contravened s.46 of the BCIIP Act by organising unlawful industrial action at the Metro Tunnel Project in Melbourne. At 6.30am and 7.00am, Mr Parker directed two groups of workers to stop working due to inadequate first aid facilities and inadequate lighting in a particular location of their worksite. Workers consequently did not commence work that morning for several
hours. When WorkSafe attended site, they confirmed that the issues raised did not warrant a cease work direction.
Penalty decision – 28
June 2021
Admission of liability
CFMMEU: $85,000 for 1 x s.46 – BCIIP
Act
Steven Parker: $5,000 for 1 x s.46 – BCIIP Act (wholly suspended)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
25.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The WGC Cranes Case)
[2021] FCA 622
Federal Court of Australia – NSW
NSD1792/2019 –
Katzmann J
15 and 16 October 2018
On 14 October 2018, in response to imminent protected industrial action, WGC arranged for their cranes and trucks to be relocated to various locations in Sydney. At about 5:00am on 15 October, WGC management attended their Wollongong depot. There were approximately 40 people who had formed a picket line outside the depot, brandishing CFMMEU banners and flags.
On 15 October 2018, CFMMEU officials Simon Gutierrez and Maki Danalis arrived at the Ross Transport Yard. Mr Danalis parked his car so as to block WGC’s cranes, making it impossible for them to exit the depot until 7:30am the next day.
Mr Gutierrez approached a WGC employee and verbally abused and photographed him, saying: “What are you doing? The boys are on strike. You don’t need to work here. Don’t be a dog. Don’t be a scab. Go home.” Later that day, a photograph of the WGC employee taken at the site was posted to the CFMMEU Facebook page with a caption defining the word ‘scab’. The post attracted many comments calling the WGC employee a “grub”, “leech”, “maggot” and “dog”, amongst other things. The photograph, caption and comments remained published on Facebook until 18 October 2018.
On 15 October 2018, Mr Gutierrez and Mr Danalis arrived at the Port Kembla Coal Terminal where Mr Danalis shouted verbal abuse at employees, calling them “scabs” and telling them to “f—off”.
He caused such delay that none of the scheduled
Penalty decision, declarations and orders – 9 June 2021
[2021] FCA
622
CFMMEU: total - $364,000, comprising of $320,000 for 3 x s.54 – BCIIP Act; and $44,000 for 1 x s.346 - FW Act
Simon Gutierrez: $6,000 for 1 x s.54 - BCIIP Act
Gerasimos ‘Maki’ Danalis: $12,800 for 2 x s.54 - BCIIP Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
work was completed that day and Police were called as Mr Danalis refused to leave the site.
26.
Australian Building and Construction Commissioner v Hanlon (No 2)
[2021] FCCA 787
Federal Circuit Court of Australia – Sydney
SYG2231/2015 – Judge
Cameron
Hanlon v ABCC [2021] FCAFC 221
Full Court of the Federal Court of Australia - Rares, Bromwich & Banks-Smith JJ
11 August
2014
On 11 August 2014, Rebel Hanlon (then Assistant State Secretary of the CFMMEU), acted in an improper manner by entering The Ponds School at Riverbank Drive, NSW, and remained on site although he had failed to give notice of entry and refused to produce his entry permit.
Brian Parker (then CFMMEU State Secretary) acted in an improper manner by entering the site and: (a) remained on site although he had failed to give notice of entry and refused to produce his entry permit; (b) responded in an inappropriate, aggressive or intimidatory manner to lawful requests to see his entry notice and permit; and
(c) spoke to workers without authority to do so. Mr Parker said he didn’t ‘care about the paperwork’ and spoke to the project manager in an aggressive way, saying that he would round up the workers himself if the manager would not, saying ‘you will do what I f**king say’ and ‘don’t
f**k me around’.
Penalty decision 23
April 2021
Liability decision 16 December 2020: [2020] FCCA 3409
Appeal by Mr Hanlon dismissed by the Full Court on 23 November 2021: [2021] FCAFC 221 (NSD463/2021
)
Brian Parker: $6,120 for 1 x s.500 – FW Act.
Rebel Hanlon: $3,060 for 1 x s.500 – FW Act.
27.
Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2)
[2021] FCA 263
Federal Court of Australia – Queensland
27 June
2014
1, 4, 7 & 17
July 2014
The head contractor for the 180 Brisbane Construction Project (Site) was Watpac Construction. In June 2014, Watpac made changes to its requirements regarding entry by visitors, including requiring visitors to report to the site office and sign a register. Watpac informed the CFMMEU of the changes.
On 27 June 2014, CFMMEU official Michael Myles acted in an improper manner by failing to give notice to prior to entering the Site notwithstanding
Penalty decision 23
March 2021
Liability decision 9 July
2019: [2019] FCA 1052
CFMMEU: $130,050 total for 5 x s.500 and 1 x s.417 - FW Act.
Michael Myles: $5,100 for 1 x s.500 - FW Act.
Andrew Sutherland: $3,570 for 1 x s.500
- FW Act.
Chad Bragdon: $7,650 for 1 x s.417 and 1 x s.500 - FW Act.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
QUD388/2016 – Collier J
statements that he was not to enter and using offensive language.
On 1, 4 and 7 July 2014, CFMMEU officials Andrew Sutherland and Kevin Griffin acted in an improper manner by failing to give notice prior to entering, not providing an entry notice and not signing the visitor’s register as required by Watpac’s Site Safety Protocols.
On 17 July 2014, CFMMEU official Chad Bragdon organised or was involved in unlawful industrial action at the Site. Mr Bragdon also hindered or obstructed or otherwise acted in an improper manner by organising or being involved in the stoppage, failing to give notice prior to entry, not providing an entry notice & not signing the register.
Kevin Griffin: $3,570 for 1 x s. 500 on 1 July 2014 & $3,570 for 1 x s. 500 - FW Act on 4 July 2014.
28.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2)
[2021] FCA 105
Federal Court of Australia – Queensland
QUD228/2019 –
Rangiah J
11 and 12
March 2019
On 11 and 12 March 2019, the CFMMEU organised unlawful industrial action by employees of PJ Walsh Constructions Pty Ltd at the construction site of the new North Queensland sports stadium in Townsville (NQS Project). This action was organised by the CFMMEU in order to coerce PJ Walsh to make an enterprise agreement with the CFMMEU.
The head contractor for the NQS Project was Watpac Constructions Pty Ltd and PJ Walsh was the sole concreting contractor on site. On the morning of 11 March 2019, CFMMEU official Mr Harradine attended the Project and addressed a number of PJ Walsh employees. Following the meeting, eleven PJ Walsh employees imposed a ban on the performance of work and refused to perform any work between 11 am and 2 pm on 11 March 2019. On 12 March 2019, an additional
group of five PJ Walsh employees joined the work
Penalty decision 18
February 2021
Liability decision 10
July 2020:
[2020] FCA
947
CFMMEU: $190,000 for 2 x s.54 - BCIIP
Act (also contravened s.46 BCIIP Act).
Grant Harradine: $20,000 for 2 x s.54 - BCIIP Act (also contravened s.46 BCIIP Act).
PJ Walsh workers (16): $4,500 to
$5,000 each for their respective s.46 - BCIIP Act contraventions – 11 workers
$5,000 each and 5 workers $4,500 each (total penalties of $77,500).
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
ban imposed on 11 March 2019. The work ban continued over to 13 and 14 March 2019.
29.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Elizabeth Street Hobart Case)
[2020] FCA 1742
Federal Court of Australia – Victoria
TAD15/2020 –
O’Callaghan J
23 May & 28
May 2019
On each of 23 May and 28 May 2019, CFMMEU official Richard Hassett contravened s.494 of the FW Act when he entered the construction project at 80 Elizabeth St. Hobart, and exercised rights under the Work Health and Safety Act 2012 (Tas) while not being a permit holder under the FW Act. CFMMEU official Kevin Harkins also contravened
s.494 on 28 May by being knowingly involved in Mr Hassett’s s.494 contravention, and contravened s.500 on the same basis.
On 28 May, Mr Harkins also contravened s.500 when he acted in an improper manner by: (a) acting in a loud and intimidating manner toward the Site foreman when asked what safety equipment was unsafe and saying words to the effect of ‘don’t get smart with me, arsehole. I’m nearly at the end of my career. I don’t give a f*** about what happens to me, but that bloke over there will be onto you [pointing to Mr Hassett]’; (b) responding to a request to identify safety breaches with ‘you don’t f**king pay me, so I’m not going to
tell you’; and (c) responding to the Site project manager asking Mr Harkins to leave by telling him to ‘get f**ked’.
Penalty decision 3 December 2020
Admission of liability
CFMMEU: total - $185,000, comprising of $50,000 for 1 x s.494; $45,000 for 1 x
s.494; $45,000 for 1 x s.494 and 1 x
s.500; and $45,000 for 1 x.s.500 – FW Act
Richard Hassett: $20,000 for 2 x s.494 (2 x $10,000) – FW Act
Kevin Harkins: $16,000, comprising of
$8,000 for 1 x s.494 and 1 x s.500; and
$8,000 for 1 x s.500 – FW Act
Note: personal payment order made in respect of Mr Hassett.
30.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union
[2020] FCA 1662
10
December 2018
CFMMEU WA State Secretary Michael Buchan, former assistant State Secretary Graham Pallot, and organiser Walter Molina organised unlawful industrial action across three Perth Airport rail link sites in Forrestfield, Redcliffe and Bayswater.
The officials’ actions led to 39 employees walking
off the job, with a number of employees at the Forrestfield site reporting sick. Workers involved in
Penalty decision 18 November 2020
Admission of liability
CFMMEU: $125,000 for 1 x s.46 – BCIIP Act
Michael Buchan: $20,000 for 1 x s.46 – BCIIP Act
Walter Molina: $20,000 for 1 x s.46 – BCIIP Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Federal Court of Australia – Perth
WAD200/2019 – Colvin J
the strike attended a meeting in the carpark of the Project’s head office that was organised by the CFMMEU officials who encouraged the workers to continue their action.
Work stopped for half a day at the three sites.
The action occurred in the context of a dispute regarding redundancy pay.
Graham Pallot: $15,000 for 1 x s.46 – BCIIP Act
39 employees: $4,000 each for 1 x s.46 – BCIIP Act (total $156,000)
31.
Australian Building and Construction Commission v Menon
[2020] FCA 1418
Federal Court of Australia – Adelaide
NTD1/2019 – White J
CFMMEU v ABCC (The
Palmerston Police Station Case) [2021] FCAFC 7
Full Court of the Federal Court of Australia
Katzmann, Griffiths & Bromwich JJ
14 & 15 May
2018
On 14 May 2018, CFMMEU officials Arturo Menon and Paul Taylor attended the Palmerston Police Station construction site and repeatedly demanded that the site be shut down when there was no requirement or obligation on the builder to do so. Both Mr Menon and Mr Taylor made threats that the builder would “pay the price” if the site was not shut down.
After ABCC inspectors arrived, four more CFMMEU officials attended site, including Roland Cummins. Mr Cummins swore at the builder’s representatives. Mr Cummins and Mr Menon then spoke to Worksafe Inspectors in loud and aggressive voices whilst standing close to them and speaking over the top of them. Both Mr Cummins and Mr Menon asserted that Worksafe needed to close the site, when there was no obligation to do so.
Mr Menon then addressed a toolbox meeting of workers in which he made a false and misleading statement that because of the site conditions the workers were entitled to go home on full pay.
On 15 May 2018, Mr Cummins attended the site. When asked for notice of entry, Mr Cummins refused to do so, swore at the builder’s representative and threatened to “go through this
Penalty decision 2
October 2020
Admission of liability
CFMMEU
appeal dismissed by the Full Court on 4 February
2021 - [2021] FCAFC 7
CFMMEU: total - $270,000 for 8 x s.500 (comprising of 2 x $40,000, 3 x $35,000, 2 x $30,000 and 1 x $25,000) – FW Act
Arturo Menon: total - $10,700 for 4 x
s.500 (comprising of 1 x $3,000, 1 x
$2,800, 1 x $2,500 and 1 x $2,400) –
FW Act
Paul Taylor: total - $5,200 for 2 x s.500 (comprising of 1 x $3,000 and 1 x
$2,200) – FW Act
Roland Cummins: total - $6,300 for 2 x
s.500 (comprising of 1 x $3,500 and 1 x
$2,800) – FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
whole site top to bottom again” if they insisted on seeing the notice of entry.
32.
Australian Building and Construction Commissioner v Hall & Ors (The 3 Site Canberra Case – Penalties (No.3))
[2020] FCCA 2352
Federal Circuit Court of Australia – Canberra
CAG78/2014 – Judge Neville J
21 August
2013
21 & 30
October 2013
20 & 28
January 2014
11 March
2014
During the period August 2013 to March 2014, CFMMEU officials Dean Hall, Halafihi Kivalu, Johnny Lomax, Jason O’Mara, Zachary Smith and Kenneth Miller entered one or more ACT apartment project sites in Franklin (Nexus site), Harrison (Harrison site) and Wright (Stromlo site).
Mr Hall, who was then secretary of the CFMMEU ACT, failed to comply with requests to produce his federal entry permit at the Nexus and Stromlo sites; intentionally hindered or obstructed workers, and otherwise acted in an improper manner, by making statements to workers at the Nexus site which resulted in a concrete pour stopping; and failed to comply with an OHS requirement not to walk around the Stromlo site unaccompanied.
ACT secretary, Jason O’Mara, refused to produce his federal entry permit at the Nexus site
and failed to comply with an OHS requirement not to walk around the Harrison site unaccompanied.
Mr Kivalu’s conduct included acting in an improper manner at the Nexus site by asking a worker to stop work and threatening to fine him when he had no authority to do so; yelling, swearing and gesturing at workers at the Harrison site; and failing to comply with an OHS requirement not to walk around the Harrison Site unaccompanied.
Mr Smith’s conduct involved yelling and swearing at workers at the Nexus site, and failing to comply with an OHS requirement not to walk around the Nexus site unaccompanied.
Penalty decision 17 September 2020
Liability decision 7 Dec
2018: [2018] FCCA 3532
Supplementary liability decision 20
Sept 2019:
[2019] FCCA
2055
CFMMEU: total - $138,000, comprising:
$25,000 for 1 x s.503; $25,000 for 1 x s.503; $20,000 for 1 x s.503; $20,000 for 1 x s.499; $28,000 for 1 x s.503;
$20,000 for 1 x s.494 – FW Act
Dean Hall: total - $27,000, comprising:
$4,500 for 1 x s.497; $6,500 for 1 x s.500; $6,500 for 1 x s.503; $4,500 for 1 x s.497; $5,000 for ss.499, 500 & 503 –
FW Act (conduct on 21 Aug, 21 & 30
Oct 2013 & 20 Jan 2014).
Halafihi Kivalu: total - $13,000, comprising: $2,500 for 1 x s.500; $2,500 for 1 x s.500; $4,000 for 1 x s.503;
$4,000 for 1 x s.499 – FW Act (conduct on 21 Oct 2013, 28 Jan & 11 March
2014).
Johnny Lomax: $2,000 for 1 x s.500 (21 Oct 2013) – FW Act.
Jason O’Mara: $4,500 for 1 x s.497 &
$7,500 for ss.499 & 503 - FW Act (conduct on 21 Aug 2013 & 11 March
2014).
Zachary Smith: $6,000 for ss.499 & 500 (30 Oct 2013) – FW Act.
Kenneth Miller: $3,500 for 1 x s.494 (11 March 2014) – FW Act.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
33.
Australian Building and Construction Commissioner v Fissenden
[2020] FCA 945
Federal Court of Australia – Queensland
QUD614/2019 –
Rangiah J
8 March
2019
Sunshine Plaza site, Queensland - Mr Fissenden (CFMMEU official) threatened to deny an independent contractor who had been engaged by shop fitting company Norman Holdings (QLD) Pty Ltd) the right to work at the site on 10 March 2019, which the contractor had been engaged to do, because he was not a member of the CFMMEU and had not paid a fee to the CFMMEU.
Mr Fissenden also threatened to deny Norman Holdings and its workers the right to work with the intention of negating their choice to pay a fee to the CFMMEU. Norman Holdings paid the $625.20 to the CFMMEU to cover the contractor’s membership fee, in response to Mr Fissenden’s threat.
Penalty decision 10
July 2020
Admission of liability
CFMMEU: $40,000 for 1 x s.348 – FW
Act (also contravened s.346)
James Fissenden: $4,000 for 1 x s.348 – FW Act (also contravened s.346)
Note: $625.50 of the CFMMEU’s penalty to be paid to Norman Holdings.
34.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The College Crescent Case)
[2020] FCA 757
Federal Court of Australia – Melbourne
VID881/2017 – Snaden J
1 March
2016
26 May 2016
On 1 March 2016, three employees of ACA Rigging & Crane Hire arrived at the University College site in Parkville and met with Mario Raspudic (delegate) for induction. Mr Raspudic asked whether they were union members. One employee was a member and was allowed to work. A second employee (who was ACA’s director) was not a member, and a third was ‘non- financial’. Mr Raspudic did not allow the two employees to work, indicating that he would not permit ACA employees to work unless they were union members.
At some point that morning, Mr Raspudic and the ACA director spoke again. In response to being told he should leave the site by Mr Raspudic, the director said words to the effect of ‘I don’t have to become a member of the union’. Mr Raspudic replied ‘No, you have to be,’ or words to that effect. There then followed a brief scuffle between
them. Mr Raspudic grabbed at a laptop the
Penalty decision 5
June 2020
Admission of liability
CFMMEU: penalties totalling $110,000 comprising of: $43,000 & $37,000 for 2 x
s.348 on 1 March; & $30,000 for 1 x
s.348 on 26 May (also contravened 2 x s.346 on 1 March) – FW Act.
Mario Raspudic: penalties totalling
$7,500 comprising of: $4,000 & $3,500 for 2 x s.348 on 1 March (also contravened 2 x s.346) – FW Act.
Mark Travers: $6,000 for 1 x s.348 – FW Act.
Note: personal payment orders made in respect of Mr Raspudic and Mr Travers.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
director was carrying and attempted to pull it from his grasp.
On 26 May 2016, Mark Travers (CFMMEU official) told the ACA director that it was ‘a union site’ and ACA was required to pay its employees ‘union rates’ (the terms of the ACA enterprise agreement differed from those favoured by the CFMMEU). Mr Travers intended to indicate that, unless ACA agreed to pay its employees more than it had been, Mr Travers and the Union would take action to prevent ACA from performing its work at the site.
35.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union
[2020] FCA 549
Federal Court of Australia – Sydney
NSD474/2019 – Flick J
20 February
2018
CFMMEU official Anthony Sloane contravened
s.46 of the BCIIP Act by organising Westform workers to engage in unlawful industrial action (the Stoppage) at the Mezzo Stage 2 Project in Glebe, NSW.
Sloane also contravened s.500 of the FW Act by:
(a) hindering or obstructing each of 3 managers and 1 supervisor from discharging their duties; and (b) by one or more of each of the following, acted in an improper manner: (i) organising the Stoppage; (ii) interrupting the pre-start meeting between Westform and Westform workers; (iii) pursuing a pay claim in circumstances where it had no merit; (iv) making a threat to organise the Stoppage unless the pay claim was resolved in favour of the Westform workers; (v) pursuing the pay claim other than in accordance with the disputes procedure in relevant enterprise agreement; (vi) failing to give notice of entry in accordance with s.487 (FW Act) to the occupier and each affected employer; and (vii) contrary to s.484, holding discussions with Westform workers outside mealtimes and other breaks.
Penalty decision 28
April 2020
Admission of liability & agreed penalty ranges
CFMMEU: penalties totalling $168,000 for 1 x s.46 BCIIP Act for Mr Sloane’s conduct ($75,000); 1 x s.46 BCIIP Act for Westform workers conduct ($75,000); and 1 x s.500 FW Act ($18,000).
Anthony Sloane: $20,000 for 1 x s.46 BCIIP Act and $5,000 for 1 x s.500 FW Act.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
36.
Australian Building and Construction Commissioner v Hassett
[2020] FCA 498
Federal Court of Australia – Tasmania
TAD17/2019 –
O’Callaghan J
16 January
2019
On 16 January 2019, Richard Hassett (together with another CFMMEU official and an official from another union) arrived at the Cattle Hill Wind Farm construction site, located at Macclesfield Road, Lake Echo, Tasmania. Upon his arrival and after some exchanges, Mr Hassett co-signed an entry notice under the WHS Act (Tas). Mr Hassett then entered the Site and walked along a haul road, before returning to the Site office. His entry was an exercise of a State or Territory OHS right for the purposes of s.494(1). Mr Hassett did not hold an entry permit under the FW Act, and he was
therefore not a ‘permit holder’ for the purposes of s.494(1). Mr Hassett was aware that he was not a permit holder under the FW Act and that he was exercising a State/Territory OHS right on his entry.
Penalty decision 21
April 2020
Admission of liability
CFMMEU: $50,000 for 1 x s.494 – FW
Act
Richard Hassett: $10,000 for 1 x s.494
Note: personal payment order made in respect of Mr Hassett.
37.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 7)
[2020] FCCA 351
Federal Circuit Court of Australia – Sydney
Judge Manousaridis
14, 16 & 17
February 2015
On 14, 16 and 17 February 2015, CFMMEU officials (including then NSW State Secretary Brian Parker and Divisional Branch assistant secretary Robert Kera) arranged a blockade of the Barangaroo project in Sydney and engaged in other conduct to coerce De Martin & Gasperini Pty Ltd (DMG) to agree to a new CFMMEU agreement.
Subcontractors engaged by DMG were prevented from carrying out their work. The CFMMEU officials engaged in various conduct, including: (a) on each of the days, congregated with other persons at the site entrance and blocked vehicle access; (b) 16 February – Mr Manna, Mr Collier, Mr Kera and other persons linked arms and moved to block a truck entering whilst come of the
members of the group shouted ‘f****ing scabs’,
Penalty decision 28
February 2020
Admission of liability
CFMMEU: $404,500 for 12
contraventions of s.343 – FW Act
Brian Parker: $17,000 for 3 contraventions of s.343
Michael Greenfield: $13,500 for 2 contraventions of s.343
Luke Collier: $7,500 for 1 contravention of s.343
Robert Kera: $21,500 for 3 contraventions of s.343
Salvatore Manna: $22,500 for 3 contraventions of s.343
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
‘filthy dogs’, ‘f*** off’ and ‘CFMEU here to stay’; (c) 14 February – Mr Kera accused employees of a subcontractor of doing the work of striking DMG employees and told them they did not want to be labelled as scab labour; (d) 17 February – Mr Greenfield & Mr Manna approached workers of a subcontractor and called them ‘scabs’; (e) 16 February – Mr Collier called out to a group that was blocking a vehicle entrance ‘stand on the road guys. There’s not enough police to take us all away’; and (f) Mr Parker told DMG’s General Manager that the prevention of work would cause more than economic harm; that he was only prepared to meet when subcontractors were not working at the site; and he would only be agreeing to an EA on terms demanded by the CFMMEU.
38.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2)
[2020] FCA 202
Federal Court of Australia – Melbourne
VID955/2015 -
Anastassiou J
13 June
2014
The proceeding related to events at the Castlemaine Police Station building site in Victoria. CFMMEU official Alex Tadic acted in an improper manner towards a WorkSafe Victoria inspector.
After entering the site on 13 June 2014, Mr Tadic contacted WorkSafe and a WorkSafe inspector attended the site. Before and during his inspection, the inspector twice told Mr Tadic that he should limit any questions and comments until the end of the visit. Mr Tadic did not comply with these requests. During the inspection, Mr Tadic ‘expressed his dissatisfaction [with the inspector] directly and forcefully….In doing so he used swear
words liberally.’ Mr Tadic called the inspector the
Penalty decision – 27
February 2020
Full Court decision – 12
February 2018 – upholding the ABCC’s appeal against [2017] FCA 197
CFMMEU: $51,000 for 1 contravention of s.500 – FW Act
Alex Tadic: $8,500 for 1 contravention of s.500
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
ABCC v CFMMEU
[2018] FCAFC 15
Full Court of the Federal Court of Australia
Dowsett, Tracey & Charlesworth JJ
worst inspector he had ever seen, causing the inspector to be to be disconcerted and concerned about his reputation. Mr Tadic also told the inspector in a raised voice that he was ‘pathetic’, and said ‘Are you applying for a job with the builder?’ As Mr Tadic left, in the presence of workers, he said to the inspector ‘This is not over’.
39.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors (No 2)
[2019] FCCA 3623
Federal Circuit Court of Australia – Sydney
SYG1132/2015
Judge Cameron
24 March
2014
The proceeding related to events that occurred at three construction sites at which Reds Global Pty Ltd was contracted to provide crane services.
Tony Sloane and Luke Collier, CFMMEU officials at the time, attended in response to Reds Global’s proposed termination of one of its employees, who was also a CFMMEU delegate. While at the Ultimo site Mr Sloane told Reds Global employees they wouldn’t be working, and at the Hornsby site he told management that it was unsafe for the cranes to operate. While at the Erskineville site Mr Collier told management that Reds Global cranes couldn’t operate because of a purported safety issue.
The court found that the CFMMEU, through its officials, engaged in a ‘targeted campaign’ against Reds Global, ‘making bogus safety complaints’ because it was contemplating terminating the employment of its employee / delegate.
Penalty decision – 12 December 2019
Liability decision – 7
August 2019
[2019] FCCA
2160
CFMMEU: penalties totalling $135,000 for 1 contravention of s.50 ($45,000) and 2 contraventions of s.340 (2 x
$45,000) – FW Act
Tony Sloane: penalties totalling $15,200 for 1 contravention of s.340 ($7,600) and 1 contravention of s.500 ($7,600) – FW Act. Also contravened ss.343 and 417.
Luke Collier: $6,700 for 1 contravention of s.340 – FW Act. Also contravened s.343.
40.
Australian Building and Construction Commissioner v Construction, Forestry,
8 May 2017
On 8 May 2017, CFMMEU officials engaged in an unlawful picket at two Melbourne construction sites. CFMMEU official John Perkovic and a group of other men blocked access to a NewCold
Penalty decision – 6 December 2019
CFMMEU: penalties totalling $215,000 for 2 contraventions of s.47 (2 x
$100,000) and 1 contravention of s.77 ($15,000) – BCIIP Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Maritime, Mining and Energy Union (The NewCold Picket Case)
[2019] FCA 2038
Federal Court of Australia – Melbourne
VID515/2018
O’Callaghan J
storage warehouse. They stood next to a CFMMEU SUV that was parked across the entry gate. At one point, Mr Perkovic and others surrounded two Hansen Yuncken managers.
When told they were trespassing, one of the group said “P*ss off, we’re here, we’re staying.” A short time later, when told that Hansen Yuncken staff and non-EBA subbies needed access to the site, Mr Perkovic said that he had lost the keys to the car.
Around the same time, at a second NewCold site, CFMMEU official Kane Pearson, CFMMEU member Mario Raspudic and a group of other men stood next to another CFMMEU SUV parked across the driveway and restricted access to a number of concrete trucks, subcontractors, office staff and employees of a potential customer. At one point, Mr Pearson said that the car was broken down and he could not move it.
The CFMMEU also contravened s.77 by failing to comply with a notice to produce documents.
Admission of liability
Kane Pearson: $20,000 for 1 contravention of s.47 – BCIIP Act
John Perkovic: $20,000 for 1 contravention of s.47 – BCIIP Act
Mario Raspudic: $15,000 for 1 contravention of s.47 – BCIIP Act
41.
Australian Building and Construction Commissioner v Hassett
[2019] FCA 855
Federal Court of Australia – Tasmania
TAD21/2018
O’Callaghan J
5 and 6 June
2017
Fairbrother Pty Limited was the site occupier at the Living City Civic Hub Project in Devonport.
On 5 June 2017, Richard Hassett (CFMMEU organiser) contravened s.499 of the FW Act by failing to comply with a reasonable request to comply with an OHS requirement that applied to the Site. Mr Hassett also contravened s.500 by acting in an improper manner while exercising, or seeking to exercise, rights in accordance with Part
3-4, by: (a) climbing onto a crane while it was in operation; (b) ignoring Fairbrother’s reasonable
Penalty decision – 6
June 2019
Admission of liability
Full Court appeal decision – 15
Penalties totalling $89,000, comprising of:
CFMMEU: $75,000 for 2 contraventions of s.500 – FW Act (also contravened s.499)
Richard Hassett: $14,000 for 2 contraventions of s.500 – FW Act (also contravened s.499)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
CFMMEU v ABCC
[2019] FCAFC 201
Full Court of the Federal Court of Australia
Bromberg, Wheelahan & Snaden JJ
requests to get off the crane; and (c) using insulting language and engaging in abusive behaviour.
On 6 June 2017, Mr Hassett again contravened
s.500 by acting in an improper manner by climbing onto a crane while it was in operation, causing crane work to stop.
November 2019
Note: an appeal by the respondents was allowed. The Full Court set aside penalties in respect of contraventions of s.499 ($8,000 & $40,000). Total penalties reduced from
$137,000 to $89,000.
42.
Australian Building and Construction Commissioner v Hynes & Anor
[2019] FCCA 3145
Federal Circuit Court of Australia – Brisbane
Judge Jarrett BRG34/2019
23 August
2018
On 23 August 2018, Blake Hynes (CFMMEU organiser), contravened s.500 when he acted in an improper manner towards the General Manager of Enco Precast P/L, whilst exercising right of entry at the Logan Enhancement Project in Queensland.
Mr Hynes spoke in an aggressive manner, yelling words to the effect of ‘you f**** dog c***’ (amongst other things) to the General Manager. Mr Hynes’ conduct was unprovoked, offensive and deliberate. The Court found his conduct was
‘antithetical to the rights of entry regime…and was a gross abuse of the entitlements given…by his entry permit’.
Penalty decision – 1 November 2019
Admission of liability
CFMMEU: $34,650 for 1 contravention of s.500 – FW Act.
Blake Hynes: $4,400 for 1 contravention of s.500 – FW Act.
43.
ABCC v Pattinson
[2022] HCA 13
High Court of Australia - M34/2021
ABCC v Pattinson
[2019] FCA 1654
13
September 2018
On 13 September 2018, at a project for the construction of student accommodation at Monash University’s Peninsula campus, Kevin Pattinson (CFMMEU delegate) told two workers of a subcontractor during an induction that they had to be members of the union to work on the site.
This prevented the workers from performing work on the site that day.
Admission of liability
Penalty decision – 14
October 2019
Full Court appeal decision – 16
October 2020
CFMMEU: $63,000 for 2 contraventions of s.349(1) – FW Act
Kevin Pattinson: $6,000 for 2 contraventions of s.349(1) – FW Act
Note: An appeal by the ABCC against the decision of the Full Court was allowed by the High Court on 13 April 2022. Orders of the Full Court made on 16 October 2020 set
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Federal Court of Australia – Melbourne
Snaden J - VID229/2019
Pattinson v ABCC
[2020] FCAFC 177
Full Court of the Federal Court – Allsop CJ, Besanko, White, Wigney & Bromwich JJ
High Court appeal decision – 13
April 2022 (special leave granted on 20
May 2021)
aside. Original penalties imposed on 14 October 2019 reinstated.
44.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Aldi/Altona North Case) (No 2)
[2019] FCA 1667
Federal Court of Australia – Melbourne
Bromberg J - VID458/2016
5 and 8 December 2014
On 5 December and 8 December 2014, Drew MacDonald (CFMMEU officer) contravened section 348 of the FW Act when he parked a vehicle across the only vehicle access entrance to 302-330 Millers Road, Altona North, Victoria, and otherwise prevented any vehicles from entering the Altona North Site, with intent to coerce Magellan Projects Pty Ltd (the head contractor on the site) to comply with a lawful request to make an enterprise agreement with the CFMMEU.
As a consequence of vehicular access to the site being impeded, building work scheduled on the site for both days could not be undertaken. By this conduct, Mr MacDonald also contravened
s.346 of the FW Act on 5 and 8 December 2014.
Penalty decision – 11
October 2019
Admission of liability
CFMMEU: penalties totalling $80,000 for 2 contraventions of s.348 (also contravened s.346 x 2) – FW Act.
Drew MacDonald: penalties totalling
$12,000 for 2 contraventions of s.348 (also contravened s.346 x 2) – FW Act.
Note: personal payment order made in respect of Mr MacDonald.
45.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and
Energy Union (The
23 October
2013
15 & 19
November 2013
The proceeding related to events at the redevelopment of the Kathleen Syme Library and Community Centre in Melbourne. Harris Interiors engaged a subcontractor, Hughes Demolition, to perform works at the Project, commencing in
Penalty decision – 20 September 2019
CFMMEU: penalties totalling $72,000 for 2 contraventions of s.345 and 1 contravention of s.343 (also contravened ss.340, 348 and 349) – FW Act.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Syme Library Case No 2)
[2019] FCA 1555
Federal Court of Australia – Melbourne
Wheelahan J VID523/2014
October 2013. Hughes Demolition did not have an enterprise agreement.
In late October and November 2013, the CFMMEU, Mr Theodorou (CFMMEU organiser), Harris Interiors and its employees (Mr Silvestro, Mr Darker and Mr Dwyer), took various actions against Hughes Demolition with intent to coerce Hughes Demolition to enter into an EA with the CFMMEU, and took adverse action against Hughes Demolition because it did not have an EA.
The court found that Mr Theodorou and the CFMMEU contravened the FW Act on 23 October and 15 November 2013. The conduct included Mr Theodorou making a false or misleading representation about Hughes’ obligation to comply with a CFMMEU request to make an EA; and threatening to organise or take industrial action against Hughes with intent to coerce them to exercise their workplace right of making an EA.
Liability decision – 1
August 2018:
[2018] FCA
1142
Theo Theodorou: penalties totalling
$9,000 for 1 contravention of s.345 and 1 contravention of s.343 (also contravened ss.340, 348 and 349) – FW Act.
Note: personal payment order made in respect of Mr Theodorou.
Harris Interiors: penalties totalling
$23,400 for 2 contraventions of s.343 and 1 contravention of s.340 (also contravened ss.345, 348 and 349) – FW Act.
Carmelo Silvestro: $1,450 for 1 contravention of s.340 (also contravened s.354) – FW Act.
Shanne Darker: $1,450 for 1 contravention of s.343 (also contravened ss.340 and 348) – FW Act.
Jason Dwyer: $1,575 for 1 contravention of s.343 (also contravened ss.340 and 348) – FW Act.
46.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2)
[2019] FCA 1498
Federal Court of Australia – Melbourne
3 December
2014
On 3 December 2014, Brendan Murphy (CFMEU organiser at the time) contravened s.500 at a construction site at Geelong Grammar School in Corio by: a) intentionally hindering and obstructing Harris HMC, its subcontractors and their workers by calling and conducting a meeting, causing the subcontractors and their employees to leave the Site and causing work to cease; and b) acting in an improper manner by failing to provide notice of his entry in contravention of s.487, failing to produce his entry permit on request in contravention of s.489, refusing to leave the Site
when requested, making threats about not re-
Penalty decision – 13 September 2019
Liability decision – 9 November 2018: [2018] FCA 1698
(declarations of contravention on 11
CFMMEU: $30,000 for 1 contravention of s.500 – FW Act.
Brendan Murphy: $4,500 for 1 contravention of s.500 – FW Act.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Mortimer J - VID494/2016
opening the Site and acting rudely and aggressively.
December 2018)
47.
Australian Building and Construction Commissioner v Collier
[2019] FCCA 650
(Liability decision)
Federal Circuit Court of Australia – Sydney
Judge Nicholls SYG3426/2014
5 March
2014
CFMMEU organiser Luke Collier attended the Barangaroo Headland Park construction project on the morning of 5 March 2014, in exercise of a right of entry pursuant to the FW Act and the NSW Work Health and Safety Act. Collier signed the visitor book, which had an acknowledgement that he had read and would comply with the visitor induction. That visitor induction included a requirement that visitor must always be accompanied on site by a fully inducted Project Representative. Collier knew of this requirement.
Collier proceeded to walk on and around the site and spoke to workers, unaccompanied by the necessary project representative, until police attended the site.
Penalty orders made on 3 July 2019
Liability decision – 18
March 2019
CFMMEU: penalty of $10,800 for 1 contravention of s.499 – FW Act.
Luke Collier: penalty of $2,700 for 1 contravention of s.499 – FW Act.
48.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2)
[2019] FCA 973
Federal Court of Australia – Melbourne
Bromberg J VID281/2015
20, 21, 27
February and 5 March
2014
CFMMEU organisers Drew MacDonald and Stephen Long exercised rights of entry on five occasions in February and March 2014 across two building sites occupied by Qanstruct (Aust) Pty Ltd.
On 20 and 21 February 2014, MacDonald entered Laverton North premises and acted in an improper manner on each occasion, including by responding dismissively to requests to show his entry permit.
On 21 February 2014, MacDonald entered the Laverton North premises and acted in an improper manner by responding to a request to produce his entry permit, saying “Why you know we don’t do
that … if I want to … talk to the guys I will”.
Penalty decision – 21
June 2019
Full Court judgment (14
June 2018)
[2018] FCAFC
88 allowed an appeal from the primary judgment (17
July 2017)
[2017] FCA
802
CFMMEU: penalties totalling $100,000 for 6 contraventions of s.500 and 1 contravention of s.340 (also 1 further contravention of s.500) – FW Act
Drew MacDonald: penalties totalling
$7,800 for 4 contraventions of s.500 – FW Act
Stephen Long: penalties totalling
$11,500 for 2 contraventions of s.500 and 1 contravention of s.340 (also 1 further contravention of s.500) – FW Act
Note: personal payment orders made in respect of Mr Long and Mr MacDonald.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
On 27 February 2014, Long entered the Cheltenham premises and acted in an improper manner including by responding dismissively to request to show his entry permit, entering the site in defiance of a warning that the police would be called, and threatening the site manager that “We will have 500 blokes on site here tomorrow”.
On 5 March 2014, Long and MacDonald entered the Cheltenham and the Laverton North premises and acted in an improper manner including by entering both sites in defiance of warnings from the occupier that they were not permitted to do so or would be trespassing. At the Cheltenham site, Long also acted in an improper manner by telling the occupier “You’re on the top of our hit list.”
49.
Australian Building and Construction Commissioner v Ravbar (No 2)
[2019] FCA 522
Federal Court of Australia – Brisbane
Reeves J QUD881/2016
In or about October 2012
In late 2012, the CFMMEU were negotiating with Universal Cranes in relation to an enterprise agreement. Universal Cranes continued to refuse to enter into a CFMMEU model agreement. At a meeting of CFMMEU organisers, Ravbar directed organisers to go to the Universal Cranes yard the next morning, follow the cranes and stop them from working once they arrived at their destinations.
The next day, Sutherland followed a franna crane from the Universal Cranes yard to the Port Connect Project on the Gateway Motorway.
Sutherland parked his car in a way that blocked the franna crane. At least five CFMMEU officials were at the project in four vehicles. The construction manager was advised that officials were there to stop the crane from working. As a result, the crane returned to the yard, and Universal Cranes did not perform any more crane work on the site during the day.
Penalty decision – 15
April 2019
Liability decision – 10
August 2018 (ABCC v
Ravbar [2018] FCA 1196)
CFMMEU: penalty of $50,000 for 2 contraventions of s.343 (also contravened s.340 x 2 and 354 x 2) – FW Act
Michael Ravbar: penalty of $5,000 for 1 contravention of s.343 (also contravened ss.340 and 354) – FW Act
Andrew Sutherland: penalty of $3,500 for 1 contravention of s.343 (also contravened ss.340 and 354) – FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
50.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal)
[2019] FCAFC 59
Full Court of the Federal Court of Australia – Brisbane
Allsop CJ, Griffiths and Rangiah JJ
QUD324/2018
Appeal from ABCC v CFMMEU (The Nine Brisbane Sites Case) (No 3)
[2018] FCA 564
Federal Court of Australia – Brisbane
Collier J
25 August, 7 September, 13 – 15
September, 21, 23, 26 &
27
September 2016
Hutchinson Builders was the principal contractor at nine projects in Brisbane. Over the period August to September 2016, the CFMMEU instigated a campaign against Hutchinson, the object of which was the engagement by Hutchinson of subcontractors who had entered into enterprise agreements with the CFMMEU or other CFMMEU approved unions, and consultation by Hutchinson with the CFMMEU as to the engagement of subcontractors in accordance with the provisions of Hutchinson’s enterprise agreement.
At various sites on several dates during the period 25 August to 27 September 2016, a number of the individual respondents (who were CFMMEU organisers):
organised strikes with intent to coerce Hutchinson to engage contractors covered by an enterprise agreement that also covered the CFMMEU (s.355);
organised strikes because Hutchinson was engaging, had engaged and was proposing to engage in industrial activity, namely, was not complying, had not complied, and was proposing not to comply, with a lawful request of the CFMMEU for Hutchinson to consult regarding the engagement of sub-contractors pursuant to the Hutchinson enterprise agreement (s.346); and
organised industrial action at a time when the Hutchinson Agreement and other agreements had not yet passed their nominal expiry dates (s.417).
Appeal decision – 12
April 2019 (penalties against the CFMMEU
increased)
Penalty decision - 24
April 2018 (also in relation to liability for certain alleged contraventions of s.417 not admitted)
Admitted liability in relation to some of the alleged contraventions – declarations made on 22
May 2017.
CFMMEU: penalties totalling $578,000 (6 x $48,000, 4 x $35,000, 6 x $25,000)
for 16 contraventions of s.355, 16 contraventions of s.346, and 10 contraventions of s.417 - FW Act.
Matthew Parfitt: penalties totalling
$10,000 for 2 contraventions of s.355, 2 contraventions of s.346, and 2 contraventions of s.417 - FW Act
Justin Steele: penalties totalling $30,000 for 5 contraventions of s.355, 5 contraventions of s.346, and 3 contraventions of s.417 - FW Act
Kurt Pauls: penalties totalling $12,000 for 2 contraventions of s.355, 2 contraventions of s.346, and 2 contraventions of s.417 - FW Act
Edward Bland: penalties totalling
$12,000 for 2 contraventions of s.355, 2 contraventions of s.346, and 1 contravention of s.417 - FW Act
Antonio Floro: penalties totalling
$15,000 for 3 contraventions of s.355, 3 contraventions of s.346, and 2 contraventions of s.417 - FW Act
Anthony Stott: penalties totalling $5,000 for 1 contravention of s.355 and 1 contravention of s.346 - FW Act
Michael Davis: penalties totalling $6,000 for 1 contravention of s.355 and 1 contravention of s.346 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
51.
ABCC v McDermott (No 2)
[2018] FCA 1611
Federal Court of Australia – Adelaide
Charlesworth J SAD39/2016
9 December
2015
On 9 December 2015, CFMMEU official Mark Gava and another official entered a construction site located on South Terrace, Adelaide, and provided a notice of entry for the purposes of the WHS Act to the project manager.
After a meeting involving workers, the officials demanded that the project manager give back the notices. After the project manager refused, Mr Gava lunged at the project manager in an attempt to get the forms, causing the project manager to move back against a fence, and pressed up against the project manager in an attempt to wrest the forms from the project manager’s pocket. Mr Gava had to be pulled away from the project manager by a subcontractor on the site.
Liability decision – 26
October 2018
Penalty judgment delivered ex tempore on 8
April 2019.
CFMMEU: penalty of $28,500 for 1 contravention of s.500 - FW Act
Mark Gava: penalty of $4,850 for 1 contravention of s.500 - FW Act
52.
Parker v ABCC
[2019] FCAFC 56
Full Court of the Federal Court of Australia – Sydney
Besanko, Reeves and Bromwich JJ
NSD 2227 of 2017
Appeal from ABCC v Parker [2017] FCA 564
(Liability decision) and ABCC v Parker (No 2) [2017] FCA 1082;
(Penalty decision)
24 and 25
July 2014
A dispute arose between Lend Lease and the CFMEU over disciplinary action taken against Lend Lease employee and CFMEU delegate Peter Genovese, following a number of workplace incidents.
On 24 and 25 July 2014, CFMEU officials, including the State Secretary and Assistant State Secretary of the NSW Branch of the C&G Division, organised and were involved in action at the Barangaroo site. This action was taken in support of Mr Genovese who had been suspended.
The action included the organisation of two meetings with workers – on each of 24 and 25 July - which resulted in a significant number of workers failing to attend work over the course of those two days. As a result of this industrial action, construction activity was seriously disrupted.
Other action taken by some of the officials included obstructing the entrance to the site on 24
Full Court judgment handed down on 5 April 2019 (final orders made on 17
June 2019)
The Full Court re-imposed penalties as follows:
CFMEU: $1,007,250 for 26
contraventions - FW Act (ss.348, 355, 417, 50)
CFMEU - NSW: $510,000 for 25
contraventions - FW Act (ss.348, 355, 417)
The Full Court also declared that each of Brian Parker, Robert Kera, Luke Collier, Michael Greenfield, Darren Greenfield, Tony Sloane, Darren Taylor, and Richard Auimatagi contravened s.50 of the FW Act by reason of their involvement in the contraventions of s.50 by CFMMEU.
Penalties against individual respondents unchanged (orders - 24 November 2017):
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
July, and verbally intimidating certain State and Federal Government officials.
Brian Parker (NSW State Secretary):
$45,400 for contraventions of ss.348, 355, and 417 - FW Act
Robert Kera (NSW Assistant State Secretary): $41,250 for contraventions of ss.348, 355, and 417 - FW Act
Danny Reeves: $41,000 for contraventions of ss.348, 355, 417 and 50 - FW Act
Luke Collier: $40,400 for contraventions of ss. 348, 355, and 417 - FW Act
Michael Greenfield: $3,000 for a contravention of s.417 - FW Act
Darren Greenfield: $5,000 for a contravention of s.417 - FW Act
Anthony Sloane: $5,500 for a contravention of s.417 - FW Act
Darren Taylor: $4,500 for a contravention of s.417 - FW Act
Richard Auimatagi: $3,000 for a contravention of s.417 - FW Act
53.
ABCC v CFMMEU
[2019] FCA 468
Federal Court of Australia – Melbourne
O’Callaghan J VID347/2018
25
November 2016 and 15 February 2017
On 25 November 2016, during a meeting at the Trillium Project, Maurice Campanaro (CFMMEU delegate) told Prolac worker John Patsalas that he had to pay fees to the CFMMEU in order to commence working at the site. Campanaro permitted Patsalas to work once Patsalas had paid a fee to the CFMMEU.
On 15 February 2017, at the EQ Tower Project, Joe Caratozzolo (CFMMEU delegate) told Patsalas that he needed to pay outstanding fees
Admission of liability
Penalty decision – 4
April 2019
CFMMEU: penalty of $70,000 for 2 contraventions of s.348 - FW Act.
Maurice Campanaro: penalty of $4,000 for 1 contravention of s.348 - FW Act.
Joe Caratozzolo: penalty of $4,000 for 1 contravention of s.348 - FW Act.
Note: the fourth respondent (Tim Petrusic) & fifth respondent (Prolac Pty Ltd) each
admitted to a contravention of s.346 of the
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
to the CFMMEU and that he would not be permitted to work until he did so. After Mr Patsalas paid the fees to the CFMMEU, he was allowed to start work.
FW Act and were penalised $2,700 and
$13,500 respectively ([2019] FCA 938).
54.
ABCC v D’Arcy & CFMEU
[2019] FCCA 563 BRG 305 of 2018
Federal Circuit Court of Australia – Brisbane
Judge Egan
27 March
2017
On 27 March 2017, during an induction session held at the Grand Central Shopping Centre project construction site at Toowoomba, Peter D’Arcy (CFMEU delegate), contravened s.349(1)(a) of the FW Act by recklessly making a false or misleading representation about the obligation of Mr Phillip Potter to engage in industrial activity within the meaning of s.347, namely, his obligation to become a member of the CFMEU and pay a membership fee to the CFMEU in order to work on the Project.
Admission of liability
Penalty decision – 7
March 2019
CFMMEU: penalty of $48,600 for 1 contravention of s.349(1)(a) - FW Act.
Peter D’Arcy: penalty of $6,480 for 1 contravention of s.349(1)(a) - FW Act.
55.
Director, Fair Work Building Industry Inspectorate v J Hutchinson Pty Ltd t/a Hutchinson Builders & Ors
[2019] FCCA 401
Federal Circuit Court of Australia – Brisbane
Judge Jarrett
9 December
2013
The conduct occurred at the Arena Apartments construction project in South Brisbane.
On 9 December 2013, CFMMEU officials Michael Myles and Mark O’Brien attended the site and organised industrial action by employees of various subcontractors. Mr Myles and Mr O’Brien both made statements to the effect that the employees would remain in the sheds until inspectors for the Building Construction Compliance Branch of the Queensland Government had left the site.
Admission of liability
Penalty decision – 22
February 2019
CFMMEU: penalty of $25,500 for 1 contravention of s.417 - FW Act.
Michael Myles: penalty of $5,100 for 1 contravention of s.417 - FW Act.
Mark O’Brien: penalty of $5,100 for 1 contravention of s.417 - FW Act.
56.
ABCC v CFMMEU (No 2)
[2018] FCA 1968
Federal Court of Australia – Victoria
19 June
2013
6 and 13 February 2014
The conduct occurred at the Springvale Rail Crossing Removal project. On 19 June 2013, CFMMEU official Joe Myles threatened to take action against McConnell Dowell with intent to coerce McConnell Dowell and/or BBA to not engage a particular subcontractor. Myles stated
that there would be ‘blue’ if Clifton Formwork were
Admission of liability
Penalty decision – 7 December 2018
CFMMEU: penalties totalling $250,000 for 9 contraventions of ss.348, 355, 417,
500 and 494 - FW Act.
Joseph Myles: penalties totalling
$44,000 for 9 contraventions of ss.348, 355, 417, 500 and 494 - FW Act.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
O’Callaghan J VID195/2016
19 March
2014
1 April 2014
engaged and that ‘there will be pickets outside the gates if they’re on this job’.
On 6 February 2014, Myles caused employees of OPT and Oz Fixing to sit in the sheds and fail to perform work. Myles stated that ‘the boys’ would be ‘shedded up’ until he got a commitment from McConnell Dowell to sign up for a CFMEU training course. By his conduct, Myles contravened ss.348, 417 and 500 of the FW Act.
On 13 February 2014, Myles convened a union meeting with four Rigweld employees who subsequently left work. Myles refused numerous directions to leave and refused to show his entry permit. By his conduct, Myles contravened ss.417 and 500 of the FW Act.
On 19 March and 1 April 2014, Myles contravened
s.494 by exercising State or Territory OHS rights without being a permit holder.
Note: personal payment order made in respect of Myles.
57.
ABCC v CFMEU (The
BKH Contractors Case) (No 2)
[2018] FCA 1563
Federal Court of Australia – New South Wales
Flick J NSD361/2016
Full Court of the Federal Court of Australia – Sydney
5 June 2014
11, 12, 16 &
17 March
2015
The conduct was taken against the BKH Group of companies at the CFMEU’s office in Sydney in June 2014, and later at the Wolli Creek and Rhodes construction sites in and March 2015.
The CFMEU, through its officials, engaged in a campaign of blockading and obstructing entry to the sites in order to force BKH to agree to the terms of an enterprise agreement proposed by the CFMEU. The conduct included blocking the main pedestrian entrance to a site, thereby impeding or obstructing access to site; threatening to ‘smash’ subcontractors’ jobs if they did not enter into a new enterprise agreement; frustrating / interrupting a concrete pour; and deliberately parking a car across the access way to a site,
Penalty decision - 18
October 2018
Liability decision - 7
February 2018 (ABCC v CFMEU [2018] FCA 42)
Full Court decision – 14
February 2020 (CFMMEU v ABCC (The BKH
CFMMEU: penalties totalling $237,000 for 8 contraventions of ss.343, 494 & 500 - FW Act (also contravened 2 x s.340).
Darren Taylor: $8,000 penalty for 1 contravention of s.343 (also contravened 1 x s.340).
Robert Kera: penalties totalling $20,000 for 3 contraventions of s.343 (also contravened 1 x s.340).
Mansour Razaghi: $8,000 for one contravention of s.500.
Brian Parker: $8,000 for one contravention of s.343.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Reeves, Rangiah and Bromwich JJ
NSD2247/2018
preventing access to or departure by concrete trucks.
The Court found that several CFMEU officials entered the Rhodes site without genuine concerns as to safety; the true object was to disrupt work at the site. The Court found that officials’ entry under ROE provisions could not be divorced from the campaign to force BKH to enter into an EA. In one instance, former CFMMEU official Ben Garvey deliberately kicked a handrail near an intended concrete pour until it fell. There was no reasonable basis upon which any opinion could be formed that the handrail was unsafe, and any safety issue that did arise was caused by Garvey’s conduct.
Contractors Appeal) [2020] FCAFC 9) &
amended orders on 1
April 2020
Luke Collier: penalties totalling $20,500 for 1 contravention of s.343 and 2 contraventions of s.494.
Ben Garvey: $2,500 for 1 contravention of s.500.
Benito Manna: $6,000 for 1 contravention of s.500.
Note: Full Court decision - appeal upheld in part. Penalty imposed on Darren Taylor reduced from $11,000 to $8,000, and 1 contravention each of ss.343 & 340 (pursuant to s.550) set aside. Other penalties imposed by Flick J unchanged.
58.
ABCC v Gava
[2018] FCA 1480
Federal Court of Australia – South Australia
White J SAD316/2017
1 and 2 December 2016
The conduct occurred at the site for the upgrade of the Flinders Medical Centre (FMC), operated by contractor Hansen Yuncken.
On 1 December 2016, Mark Gava (CFMMEU officer at the time) contravened s.503 by signing and causing an entry notice to be sent to Hansen Yuncken with the intention of giving the impression that he was authorised to enter the FMC site. On 2 December 2016, Gava contravened s.503(1) by entering the FMC site pursuant to the said entry notice with the intention of giving the impression that he was authorised to enter pursuant to s.484.
Gava did not hold an entry permit on 1 and 2 December as his previous permit had expired and a new permit had not been issued to him. When Gava entered the FMC site on 2 December, he falsely claimed that he was unaware that his entry permit had expired.
Admission of liability
Penalty decision - 2
October 2018
CFMMEU: penalties totalling $68,000 for 2 contraventions of s.503(1) - FW Act ($40,000 and $28,000)
Mark Gava: penalties totalling $6,000 for 2 contraventions of s.503(1) - FW Act ($3,500 and $2,500)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
59.
ABCC v O’Connor (No 4)
[2018] FCA 1293
Federal Court of Australia – South Australia
Besanko J SAD253/2014
13 May 2014
The conduct occurred at the site for the construction of the new Royal Adelaide Hospital.
CFMEU officers Jim O’Connor and Jack Merkx threatened to take industrial action against Bleasdale National Contractors (BNC) with intent to coerce BNC to comply with a lawful request of the CFMEU for BNC to employ Jason Clark (who was on the CFMEU executive). O’Connor and Jack Merkx also threatened to take industrial action against BNC with intent to coerce BNC to terminate the employment of Mr Dan Hylands (who would not join the CFMEU) and to employ Mr Clark.
By this conduct, O’Connor also acted in an improper manner while exercising entry rights at
the project. O’Connor said words to the effect of ‘If you don’t want to find him a job, we’ll go to war
with you.’
Merkx said words to the effect of ‘If your guys don’t want to join the union, you should sack them and the union will find workers for BNC to hire’.
Penalty decision - 27
August 2018
Liability decision - 6
February 2018 (ABCC v
O’Connor (No 3) [2018] FCA
43)
CFMEU: penalties totalling $71,400 for 2 contraventions of s.355 - FW Act ($35,700 for each contravention) (also contravened 1 x s.348 and 1 x s.500)
Jack Merkx: penalties totalling $10,200 for 2 contraventions of s.355 - FW Act ($5,100 for each contravention) (also contravened 1 x s.348)
Jim O’Connor: declarations: 2 contraventions s.355, 1 contravention of s.348, and 1 contravention of s.500 - FW Act
Note: On 14 August 2015, a penalty was imposed on O’Connor following a finding that, on 13 May 2014 at the project, he acted in contempt of an interim court order (DFWBII v Cartledge [2015] FCA 453 & [2015] FCA 851). Because of this contempt proceeding, the ABCC did not seek penalties against O’Connor in respect of these contraventions.
60.
ABCC v CFMMEU (The
Parliament Square Case) (No 2)
[2018] FCA 1201
Federal Court of Australia – Tasmania
Tracey J
28 July, 21
October & 5 November 2015
The conduct occurred at the Parliament Square construction project in Hobart. On 28 July 2015, CFMMEU official Richard Hassett acted in an improper manner by failing to provide notice of his entry, failing to enter on a day specified in such a notice, holding discussions with workers outside of mealtimes or other break times, and using foul language.
On 21 October 2015, Hassett acted in an improper manner by failing to provide notice of his entry, failing to enter on a day specified in such a notice, holding discussions with workers outside of
mealtimes or other break times, and dismissively
Penalty decision - 16
August 2018
Liability decision - 20
July 2018 (ABCC v CFMMEU (The
Parliament Square Case) [2018] FCA
1080)
CFMMEU: penalties totalling $170,000 for 4 contraventions of s.500 - FW Act
Richard Hassett: penalties totalling
$18,000 for 4 contraventions of s.500 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
ignoring advice from management that he should not be on site.
Hassett also acted improperly on 5 November 2015 by failing to provide notice of his entry, failing to produce an entry notice when asked, refusing to leave the site when requested, using offensive language, and by directing unnecessary and gratuitous abuse to site management.
61.
ABCC v CFMMEU (The
Brooker Highway Case) (No 2)
[2018] FCA 1214
Federal Court of Australia – Tasmania
Tracey J
12 October
2016
On 12 October 2016 at a road building project on the Brooker Highway near Hobart, CFMMEU official Richard Hassett acted in an improper manner while exercising rights as a permit holder under s.484.
Hassett failed to give notice of his attendance (as required by s.487), remaining on site after being directed to leave, and by aggressively and repeatedly using foul and abusive language towards site managers.
Penalty decision - 16
August 2018
Liability decision - 20
July 2018
([2018] FCA
1081)
CFMMEU: $50,000 for 1 contravention of s.500 - FW Act
Richard Hassett: $7,500 for 1 contravention of s.500 - FW Act
62.
ABCC v CFMMEU
(Bendigo Theatre Case) (No 2)
[2018] FCA 1211
Federal Court of Australia – Melbourne
Tracey J
22 July & 29
July 2014
1 August
2014
The conduct occurred at the Bendigo Theatre construction project. CFMEU official Nigel Davies contravened s.500 on 22 July 2014 by failing to provide entry notice, refusing to produce his permit, directing foul and abusive language towards a representative of the occupier and refusing to comply with a lawful direction to leave the site. The court found that it was also improper for Davies to tell a representative of the occupier to ‘go away’ and to place his mobile phone close to his face.
Davies also contravened ss.497 and 500 on 29 July 2014 by refusing to produce his permit, continuing to exercise rights after refusing to produce his permit, and refusing to leave the site.
Penalty decision - 14
August 2018
Liability decision - 23
February 2018 (ABCC v CFMEU
(Bendigo Theatre Case) [2018] FCA
122)
CFMMEU: penalties totalling $245,000 for 6 contraventions of s.500 - FW Act
Nigel Davies: penalties totalling $19,000 for 5 contraventions of s.500 and 1 contravention of s.497 - FW Act
Alex Tadic: $7,500 for 1 contravention of
s.500 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
CFMEU official Alex Tadic contravened s.500 on 1 August 2014 by acting in a loud, rude and aggressive and abusive manner, and by using profane and indecent language towards the representative of the occupier.
63.
CFMMEU v ABCC (The
Broadway on Ann Case) [2018] FCAFC
126
Full Court of the Federal Court of Australia - Brisbane
Tracey, Logan, and Bromwich JJ
Appeal from ABCC v Hanna & Anor (No 3) [2017] FCCA 2519
(Vasta J, 19 October 2017)
10 February
2015
On 10 February 2015, CFMEU official David Hanna entered the ‘Broadway on Ann’ Project to hold discussions with workers without giving notice and refusing requests to leave. When asked for a permit, Hanna raised his hand with his middle finger extended and said he did not need an entry permit. Hanna squirted water at a contract managers face which hit his shirt and mobile phone, saying “Take that phone away or I’ll f**** bury it down your throat, you ask me if you want to a picture of me.” Hanna also used an employee’s swipe card to swipe out a number of employees. This meant that Hindmarsh did not have a record of which employees had left the premises.
Full Court decision in relation to CFMMEU
appeal on 14
August 2018
Appeal from penalty decision on 19
October 2017 (CFMMEU)
Penalty decision in relation to Hanna on 25
May 2017 (ABCC v
Hanna & Anor
[2017] FCCA
1257)
CFMMEU: $306,000 for 6
contraventions of s.500 - FW Act ($51,000 for each contravention)
Notes:
The Full Court re-exercised the sentencing discretion and imposed the same penalties on the CFMMEU as had been determined by Vasta J. The Full Court held that there were errors in the form of Vasta J’s orders and in the consideration of the single course of conduct principle. The CFMMEU’s appeal was otherwise dismissed.
Penalty decision in relation to Hanna handed down on 25 May 2017 ($10,200 for 6 x s.500 contraventions). Hanna’s penalty was not part of this appeal.
64.
ABCC v McDermott (No 3)
[2018] FCA 1105
Federal Court of Australia – South Australia
28 April, 23
May, 6 June
& 14 July
2014
Hindmarsh Construction was the head contractor at a site in Adelaide. An apartment complex known as Ergo Apartments Stage 2 was being constructed at the relevant time. The conduct occurred whilst the respondents were exercising or seeking to exercise statutory rights under Part 3-4.
On each of 28 April, 23 May, 6 June and 14 July 2014, Michael McDermott acted in an improper
Penalty decision - 27
July 2018
Liability decision in relation to McDermott, Sloane and
CFMMEU: penalties totalling $116,790 for 5 contraventions of s.500 - FW Act (in relation to contraventions by McDermott and Cartledge)
Michael McDermott: penalties totalling
$14,300 for 4 contraventions of s.500 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Charlesworth J
manner by engaging in various conduct, including failing to provide an entry notice (as required by s.497), remaining on site when asked to leave by the site manager, and (on two of the days) holding discussions with employees for approximately 30 and 25 minutes respectively.
On 28 April 2014, Anthony Sloane acted in an improper manner by failing to provide an entry notice, remaining on site when asked to leave, and holding discussions with employees in rooms or areas not agreed with Hindmarsh and not during mealtimes or other breaks.
Aaron Cartledge acted in an improper manner on 14 July 2014 by failing to provide an entry notice, remaining on site when asked to leave, and holding discussions with employees.
Cartledge on 21 September
2016 ([2016]
FCA 1147)
Liability decision in relation to the CFMMEU on 17 July 2017 (ABCC v
McDermott (No 2) [2017] FCA
797)
Anthony Sloane: $3,000 for 1 contravention of s.500 - FW Act
Aaron Cartledge: $3,500 for 1 contravention of s.500 - FW Act
Note: application for costs against the ABCC by the former fifth respondent (CFMEU – NSW Branch) dismissed
65.
CFMMEU v ABCC (The
Non-Indemnification Personal Payment Case)
[2018] FCAFC 97
Full Court of the Federal Court of Australia – Melbourne
Allsop CJ, White, and O’Callaghan JJ
CFMMEU v ABCC (The
Non-Indemnification Personal Payment Case) (No 2)
[2018] FCAFC 117
16 & 17 May
2013
The proceeding concerned events at Josephs Road, Footscray, in Melbourne, where part of the Victorian Government’s Regional Rail Link Project was under construction. John Holland and Abigroup Contractors were undertaking construction. The CFMEU wanted a delegate on the site. The companies refused on the basis that there was already a delegate on site (though from another union).
On 16 May 2013, CFMEU official Joseph Myles organised approximately 20 persons with approximately 9 vehicles to blockade vehicular access to the site, interrupting a concrete pour. The site was blocked until the concrete in the trucks waiting to enter the site was no longer fit to be used. The concrete that had been poured before the blockade had to subsequently be removed. Prior to leaving, Myles issued a threat
Admission of liability
Penalty decision on 13
May 2016
(Mortimer J)
Full Court decision ([2016] FCAFC
184) on 21
December 2016 setting aside non- indemnification orders, but otherwise dismissing
Penalties increased by the Full Court as follows:
CFMMEU: penalties totalling $111,000 for 3 contraventions of s.348 - FW Act ($71,000 for conduct on 16 May (2 x s.348) and $40,000 for conduct on 17 May (1 x s.348))
Joseph Myles: penalties totalling
$19,500 for 3 contraventions of s.348 - FW Act ($12,500 for conduct on 16 May (2 x s.348) and $7,000 for conduct on 17 May (1 x s.348))
Note: personal payment order made in respect of Myles.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Appeal from DFWBII v CFMEU (No 2) [2016]
FCA 436 (Mortimer J)
to those managing the site that they would be back the next day to repeat the exercise.
On 17 May 2013, Myles returned to the site, though not in company. He spoke to a senior manager and issued another threat to the effect that there would be a CFMEU delegate on the site or there would be “war”.
appeal against penalties.
On 14
February 2018, the High Court set aside penalty orders of Mortimer J and remitted the re- imposition of penalties to the Full Court
Penalty decision of the Full Court on 25 June 2018
Penalty orders made by the Full Court on 2 August 2018
66.
ABCC v CFMMEU
(Cardigan St Case)
[2018] FCA 957
Federal Court of Australia – Victoria
Bromberg J
28 & 30
March 2015
On 28 March 2015, at the Cardigan Street Apartments project in Carlton, CFMMEU delegate and Maxstra Constructions employee Ismar Miftari prevented a crane lift from occurring. This action was taken by Miftari with intent to coerce Maxstra to not engage ATC and to engage a traffic management company who was covered by an enterprise agreement which also covered the CFMMEU. Theo Theodorou, CFMMEU organiser, organised for Miftari to engage in this conduct.
Miftari’s employment with Maxstra was terminated as a result. Rob Graauwmans, CFMMEU organiser, organised for three crane companies
Admitted liability
Penalty decision - 22
June 2018
CFMMEU: penalties totalling $120,000 for 3 contraventions of s.355 ($80,000 aggregate) and 1 contravention of s.348
- FW Act ($40,000)
Theo Theodorou: $8,500 for 1 contravention of s.355 - FW Act
Rob Graauwmans: $7,500 for 1 contravention of s.355 - FW Act
Ismar Miftari: penalties totalling $6,000 for 1 contravention of s.355 ($4,000)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
not to attend the site or perform a crane lift, with the intent of coercing Maxstra to re-employ Miftari.
On 30 March 2015, Miftari threatened to prevent a painting company from performing any further work on the site or on any other project in Melbourne, with intent to coerce the company to comply with a request of the CFMMEU not to continue to perform work at the Cardigan St site.
and 1 contravention of s.348 - FW Act ($2,000).
67.
ABCC v Upton (The Gorgon Project Case) (No 2)
[2018] FCA 897
Federal Court of Australia – Western Australia
Barker J
3 December
2015
On 3 December 2015, CFMEU official Bradley Upon entered the Gorgon Project in the exercise of entry rights. Upton addressed a meeting of approximately 50 to 60 employees of various contractors. Upton attended the meeting displeased with what he understood to be as many as 90 members of the CFMEU resigning from the union after an EA had been achieved.
Upton spoke in an aggressive manner, including by saying words to the effect:
The f**** 90 dog c**** that resigned from the union the day after we f**** signed the EBA after we got the conditions we got now, this is a f***** union site. If you don't f***** like it, f*** off somewhere else. We got you these conditions, we know who you are. We're going to put your names on the back of the toilet doors.
If you're not in the union, you can f*** off somewhere else. This is a f***ing union site, we have other union sites starting up next year and if you're not in the union, you can f*** off too…
Penalty decision - 14
June 2018
Liability decision - 21 September 2017 (ABCC v
Upton [2017]
FCA 847)
CFMEU: $43,200 for 1 contravention of
s.348 - FW Act (also found to have contravened 1 x s.346(a) and 1 x s.500).
Bradley Upton: $8,100 for 1 contravention of s.348 - FW Act (also found to have contravened 1 x s.346(a) and 1 x s.500).
68.
ABCC v Ingham (No 2) (The Enoggera Barracks Case)
8 March, 9
August, 28 &
30 October,
7, 11 – 12,
The contraventions arose out of an industrial dispute between the CFMEU and John Holland Pty Ltd (John Holland) and John Holland Queensland Pty Ltd (JHQ) in 2012 and 2013. The
Admitted liability
CFMEU: penalties totalling $551,900 (3 x $15,300 & 11 x $46,000).
Contraventions of ss.343, 417 and 421 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
[2018] FCA 263
Federal Court of Australia – Brisbane
Rangiah J
18, 21 & 25
November 2013
dispute concerned JHQ’s refusal or failure to enter into an Enterprise Agreement (EA) with the CFMEU on terms sought by the CFMEU.
In mid-2012, the CFMEU sought to negotiate an EA with JHQ in relation to its operations in Queensland. Negotiations between the CFMEU and John Holland and JHQ continued until March 2013. On 6 March 2013, Jade Ingham (Assistant State Secretary of the CFMEU), told John Holland’s Operations Manager that he was upset JHQ had not yet signed an EA in respect of its Queensland and Northern Territory operations and there would be industrial action until it signed the agreement.
Thereafter, the CFMEU and a number of its officials and organisers engaged in a campaign against JHQ to force it to enter into an EA on terms acceptable to the CFMEU. The industrial action taken as part of this campaign involved the CFMEU organizing stoppages of work at two JHQ projects, the ELF2B Project at Enoggera Barracks and the QUT Project at Kelvin Grove (QUT), over a period from March 2013 until late November 2013.
The conduct engaged in by some of the respondents on the relevant dates involved organising employees to take industrial action by not performing work at the QUT and Enoggera Barracks projects (s.417) and taking this action with intent to coerce JHQ to enter into an EA with the CFMEU on terms acceptable to the CFMEU (s.343).
On a number of the relevant dates, some of the respondents also contravened s.421 by organising
Penalty decision on 9
March 2018
Jade Ingham: penalties totalling
$30,000. Contraventions of ss.343, 417 and 421 - FW Act
Kane Pearson: penalties totalling
$37,500. Contraventions of ss.343, 417 and 421 - FW Act
Anthony Kong: penalties totalling
$21,000. Contraventions of ss.343, 417 and 421 - FW Act
Kevin Griffin: penalties totalling $17,500. Contraventions of ss.343, 417 and 421 - FW Act
Michael Myles: penalties totalling
$22,500. Contraventions of ss.343, 417 and 421 - FW Act
Andrew Sutherland: penalties totalling
$10,500. Contraventions of ss.343, 417 and 421 - FW Act
Mark O’Brien: penalties totalling
$22,500. Contraventions of ss.343, 417 and 421 - FW Act
Dennis Mitchell: penalties totalling
$10,500. Contraventions of ss.343, 417 and 421 - FW Act
Chad Bragdon: penalties totalling
$22,500. Contraventions of ss.343, 417 and 421 - FW Act
Edward Bland: $7,500. Contraventions of ss.343 and 417 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
the industrial action in breach of an order of the Fair Work Commission.
In addition, some of the respondents also engaged in coercive conduct on dates in November 2013 by impeding entry of persons to the QUT and Enoggera Barracks projects with intent to coerce JHQ to enter into an EA with the CFMEU on terms acceptable to the CFMEU.
Duncan McAllister: penalties totalling
$14,000. Contraventions of ss.343, 417 and 421 - FW Act
Benjamin Sheeran: $3,500. Contraventions of ss.343 and 417 - FW Act
Wayne Scobie: penalties totalling
$7,000. Contraventions of ss.343, 417 and 421 - FW Act
Mace Griffin: penalties totalling $7,000. Contraventions of ss.343, 417 and 421 - FW Act
John Cummins: $7,500. Contravention of s.343 - FW Act
Ryan Whakaruru: $3,500. Contraventions of ss.343 and 417 - FW Act
Lindsay Stohr: penalties totalling $7,000. Contraventions of ss.343 and 417 - FW Act
Aaron Kelly: penalties totalling $10,500. Contraventions of ss.343, 417 and 421 - FW Act
Antonio Floro: penalties totalling $3,600. Contraventions of s.343 - FW Act
69.
ABCC v CFMEU (The
Quest Apartments Case) (No 2)
[2018] FCA 163
17 March &
31 March
2014
During an induction session at the Quest Apartments site on 17 March 2014, CFMEU delegate Godwin Farrugia told two workers of a subcontractor that it was a ‘union site’ and that he would not permit them to work unless they paid their CFMEU membership fees (as they had fallen
into arrears). One worker was given two days to
Liability decision on 30 November 2017 (ABCC v CFMEU (The
Quest Apartments
CFMEU: $45,000 for 1 contravention of
s.348 of the FW Act on 17 March 2014 and $50,000 for 1 contravention of s.348 on 31 March 2014 (also contravened
s.349 & s.346(b) on 17 March and s.346(b) on 31 March 2014)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Federal Court of Australia – Melbourne
Tracey J
make good his arrears and the other was given two weeks. Both worked on 17 March.
The workers returned to site on 31 March. One had not made good his arrears and decided that he was under no legal obligation to do so in order to work. Farrugia told him that he would not be permitted to enter and directed him to leave.
Case) [2017]
FCA 1398)
Penalty decision on 26
February 2018
Godwin Farrugia: $4,000 for 1 contravention of s.348 on 17 March 2014 and $6,000 for 1 contravention of
s.348 on 31 March 2014 (also contravened s.349 & s.346(b) on 17 March and s.346(b) on 31 March 2014)
70.
ABCC v CFMEU (The
Footscray Station Case)
[2017] FCA 1555
Federal Court of Australia – Melbourne
Tracey J
27 February
2014
CFMEU organisers Joseph Myles and Drew MacDonald entered a delineated area of the Footscray Railway Station site. They ignored requests by the occupier not to enter the area which had been delineated as being out of bounds for safety reasons and ignored requests to exit the area.
Once outside the delineated area, Mr Myles stopped all form work from continuing. Work resumed only after workers were told that the stoppage was unlawful.
Mr MacDonald then stood in the access roadway and delayed the entry of a cement truck. Mr Myles hindered and obstructed the pouring of concrete by positioning himself between a concrete truck and a concrete pump and did not move until the truck had driven away. He resumed this position when the next truck arrived. Mr Myles ignored all requests by the occupier to remove himself from this position.
Liability decision on 5
August 2016 (FWBC v CFMEU (The
Footscray Station Case) [2016] FCA
872)
Penalty decision on 21 December 2017
CFMEU: $200,000 for 4 contraventions of s.499 and 6 contraventions of s.500 - FW Act
Joseph Myles: $32,000 for 3 contraventions of s.499 and 4 contraventions of s.500 - FW Act
Drew MacDonald: $10,000 for 1 contravention of s.499 and 2 contraventions of s.500 - FW Act
71.
ABCC v Moses & Ors (No 2)
[2017] FCCA 2738
11
September 2013
J Hutchinson Pty Ltd engaged Smithbridge Group Pty Ltd to perform work at the Gladstone Port Boardwalk.
CFMEU organiser Jody Moses threatened to take action with intent to coerce seven Smithbridge workers to become CFMEU members. This action
Liability decision on 18
April 2017 (ABCC v
Moses & Ors
CFMEU: $45,000 for 1 contravention of
s.348 - FW Act (also found to have contravened s.346(a) & 349(1)(a) by the conduct of Moses and operation of s.793)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Federal Circuit Court of Australia – Brisbane
Judge Jarrett
included Moses telling workers that it was a union site and if they wanted to work they had to join the CFMEU, and if they did not join the union no work would occur by the workers that day and they would be removed from site. Moses also told workers that they had five minutes to think about it.
Moses allowed the workers a further 48 hours to decide and said that he would return on 13 September 2013.
Gregg Churchman, a CFMEU delegate and Hutchinson employee was present when Mr Moses spoke to the workers. Churchman aided the commission of the contravention because he did nothing to correct Moses’ false statements.
Moses’ was also found to have taken adverse action and knowingly made a false or misleading representation about the workers’ obligation to become union members.
[2017] FCCA
738)
Penalty decision on 9 November 2017
Jody Moses: $5,500 for 1 contravention of s.348 - FW Act (also found to have contravened s.346(a) & 349(1)(a))
Gregg Churchman: $4,000 for 1 contravention of s.348 - FW Act (also found to have contravened s.346(a) & 349(1)(a) by being knowingly concerned in Moses’ contraventions)
72.
ABCC v CFMEU
[2017] FCA 1269
Federal Court of Australia – Brisbane
Reeves J
9 May 2016
to 1 June
2016
During the period 9 May 2016 to 1 June 2016, CFMEU officials Andrew Watson and Shaun Desmond called and conducted a series of twice- daily, two-hour union meetings at the Carrara Sports and Recreation Project. This action was taken with the intent to coerce Hansen Yuncken to enter into an EA with the CFMEU or enter into an EA with the CFMEU on terms required by the CFMEU.
Liability decision on 24
February 2017 (ABCC v CFMEU [2017]
FCA 157)
Penalty decision on 27
October 2017
CFMEU: $54,000 for 1 contravention of
s.343 and 1 contravention of s.348 - FW Act
Andrew Watson: $5,000 for 1 contravention of s.343 and 1 contravention of s.348 - FW Act
Shaun Desmond: $5,000 for 1 contravention of s.343 and 1 contravention of s.348 - FW Act
73.
ABCC v CFMEU
(Werribee Shopping Centre Case)
[2017] FCA 1235
4 August
2015
Action Commercial Catering Equipment Pty Ltd (ACCE) was contracted to perform works at the Werribee Shopping Centre.
Admitted liability
CFMEU: $90,000 for 2 contraventions of
s.348 - FW Act (also contravened s.346)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Federal Court of Australia – Melbourne
Tracey J
On 4 August 2015, CFMEU shop steward Andrew Harisiou prevented two ACCE workers from working on the project while he confirmed that they were CFMEU members and that their membership fees were up to date. Mr Harisiou prevented a third ACCE worker from working the entire day because he refused to join the CFMEU. Mr Harisiou took action with the intent to coerce the first worker to pay membership subscriptions and/or dues to the CFMEU; action with the intent to coerce the second worker to become a CFMEU member; and adverse action against the third worker for reasons including that he was not a member of the CFMEU.
Penalty decision on 23
October 2017
Andrew Harisiou: $8,000 for 2 contraventions of s.348 - FW Act (also contravened s.346)
74.
ABCC v Huddy (No 2)
[2017] FCA 1088
Federal Court of Australia – Northern Territory
White J
22 October
2013
A dispute arose between Laing O’Rourke (LOR) and its employees at the Ichthys LNG Project in the Northern Territory regarding the time at which the buses transporting employees to their accommodation should depart. On 22 October, CFMEU organiser Michael Huddy and delegate Craig Tait held a meeting with workers which led to a number of the employees stopping work for the remainder of the day. As a result, there was a stoppage of work from approx. 10:45am to 5pm. LOR obtained an order from the FWC directing the workers to return to work. On 23 October, the employees resumed work.
Liability decision on 30
June 2017
Penalty decision on 14 September 2017
CFMEU: $25,000 for 1 contravention of
s.500 - FW Act
Michael Huddy: $16,000 for 15 contraventions of s.348 and 1 contravention of s.500 - FW Act
Craig Tait: $12,250 for 16 contraventions of s.348 - FW Act
Against the employee respondents: a total of $90,000 for 60 contraventions of
s.348 ($1,500 each) and $1,200 for one contravention of s.417 - FW Act
75.
ABCC v Dig It Landscapes & Ors
[2017] FCCA 2128
Federal Circuit Court of Australia – Brisbane
6 and 7 May
2014
Dig It Landscapes subcontracted Polyseal to do works at the Water Street Fortitude Valley site in May 2014. On 6 May 2014, Polyseal personnel started work at the Site. CFMEU delegate Kurt Pauls told Polyseal that they could not work at the premises as they did not have an enterprise agreement with the CFMEU. The next day, David
Admitted liability
Penalty decision on 5 September 2017
CFMEU: $47,175 for 1 contravention of
s.354 - FW Act (also contravened s.340)
Kurt Pauls: $7,650 for contraventions of
s.340 and s.354 - FW Act
Dig It Landscapes: $40,800 for 1 contravention of s.354 - FW Act (also contravened s.340)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Judge Vasta
Mercer, Dig It Landscapes project manager, terminated the contract with Polyseal.
David Mercer: $6,120 for contraventions of s.340 and s.354 - FW Act
76.
ABCC v CFMEU
[2017] FCAFC 113
Full Court of the Federal Court of Australia – Brisbane
Dowsett, Greenwood & Wigney JJ
24, 25 & 26
May 2011
In May 2011, CFMEU officials Joseph Myles, Shane Treadway, Peter Close, Jamie McQueen, Edward Bland, Kevin Griffin, Gerard Neiland, Andrew Clark and Tony Kong variously attended three Queensland Government Infrastructure construction projects being the Queensland Children’s Hospital (QCH), Brisbane Convention and Exhibition Centre (BCEC) and Queensland Institute of Medical Research (QIMR). CEPU officials Christopher Lynch, Gary O’Halloran and Mark Bateman attended the QCH and QIMR sites.
On 24 May, the officials attended the sites and convened meetings with workers. Following each meeting, approximately 165 workers on the QCH site, 260 workers on the BCEC site and 180 workers on the QIMR site did not work for the remainder of that day, and 25 and 26 May 2011.
Admitted liability
Penalty decision on 3
August 2017
$430,000 comprising:
CFMEU: $300,000 for 605
contraventions of s.38 - BCII Act
CEPU: $130,000 for 345 contraventions of s.38 - BCII Act
77.
ABCC v Pauls
[2017] FCA 843
Federal Court of Australia – Brisbane
Rangiah J
19 & 20
August 2016
On 19 August 2016, CFMEU organisers Kurt Pauls, Justin Steele and Eddie Bland attended six Watpac construction projects in Brisbane.
The organisers attended the projects early in the morning and convened meetings with employees of various subcontractors and encouraged, organised, instructed or counselled the employees to cease or not perform work. On each of the projects, the employees left the sites and did not work for the rest of the day and the next day.
The conduct of the organisers was taken with the intent of coercing Watpac to not engage
Admitted liability
Penalty decision on 28
July 2017
$130,000 comprising:
CFMEU: $100,000 for 6 contraventions of s.355 and 5 contraventions of s.417 - FW Act
Kurt Pauls: $10,000 for 4 contraventions of s.355 and 3 contraventions of s.417 - FW Act
Justin Steele: $10,000 for 4 contraventions of s.355 and 3 contraventions of s.417 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
subcontractors that were not covered by an Enterprise Agreement.
Eddie Bland: $10,000 for 2 contraventions of s.355 and 2 contraventions of s.417 - FW Act
78.
ABCC v Harris
[2017] FCA 733
Federal Court of Australia – Perth
Siopis J
25 May 2015
On 25 May 2015, CFMEU organiser Tawa Harris attended the Joondalup carpark construction site to hold discussions with employees on the site. Harris did not provide a Notice and despite being directed not to enter and to leave the site, refused to leave the site for 45 minutes when Police were called.
Admitted liability
Penalty decision on 29
June 2017
Tawa Harris: $2,000 for 1 contravention of s.500 - FW Act
79.
ABCC v Barker & Anor
[2017] FCCA 1143
Federal Circuit Court of Australia – Brisbane
Judge Jarrett
28 January
2016
On 28 January 2016 at the Zest Apartment Project in Brisbane, CFMEU site delegate Daniel Barker told two construction workers that they could not work on the project unless they paid union membership fees.
Admitted liability
Penalty decision on 30
May 2017
$86,000 comprising:
Daniel Barker: $6,000 for 2 contraventions of s.349(1)(a) - FW Act
CFMEU: $80,000 for 2 contraventions of s.349(1)(a)
80.
ABCC v Hanna & Anor
[2017] FCCA 1257
Federal Circuit Court of Australia – Brisbane
Judge Vasta
10 February
2015
On 10 February 2015, CFMEU official David Hanna entered the ‘Broadway on Ann’ Project to hold discussions with workers without giving notice and refusing requests to leave. When asked for a permit, Hanna raised his hand with his middle finger extended and said he did not need an entry permit. Hanna squirted water at a contract managers face which hit his shirt and mobile phone, saying “Take that phone away or I’ll f**** bury it down your throat, you ask me if you want to a picture of me.” Hanna also used an employee’s swipe card to swipe out a number of employees. This meant that Hindmarsh did not have a record of which employees had left the premises.
Admission of liability by Hanna
Penalty decision in relation to Hanna on 25
May 2017
David Hanna: $10,200 for 6 contraventions of s.500 - FW Act
Note: penalty decision in relation to the CFMEU handed down on 19 October 2017 (ABCC v Hanna & Anor (No 3) [2017] FCCA 2519. Appealed by the CFMEU. Full Court decision handed down on 14 August 2018.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
81.
ABCC v CFMEU (Perth Childrens’ Hospital Contraventions Case)
[2017] FCA 491
Federal Court of Australia – Perth
Barker J
25 January
2013, 30
January 2013, 3 May
2013 and 18
July 2013
On 25 January 2013, Buchan, McDonald, Heathcote and Harris stood together at the entrance to the Perth New Childrens’ Hospital (NCH) site preventing between 109 and 136
employees from accessing the site and stopping work for the day.
On 30 January 2013, Harris stood with other officials preventing employees from accessing the site for about 40 minutes. Harris physically prevented some employees from accessing the site. On both days, employers were prevented from exercising their workplace right to participate in a safety dispute settlement procedure.
On 3 May 2013, Buchan and McDonald, together with other officials, occupied the site entrances preventing access to 207 employees with the intent of coercing the head contractor John Holland to comply with their request for equal pay.
On 18 July 2013, Noonan, Buchan, McDonald and Harris organised a blockade of approximately 400 people at the site which prevented some 45 truckloads of concrete and slurry to be poured and prevented 205 employees from working on the site with the intent of coercing John Holland to comply with their equal pay request.
Admitted liability
Penalty Decision on 11
May 2017
$277,000 comprising: WAD16/2014
CFMEU: $88,500 for 4 contraventions of s 340 - FW Act
Bradley Upton: $3,500 for 1 contravention of s 340 - FW Act
Patrick Heathcote: $2,500 for 1 contravention of s 340 - FW Act
Tawa Harris: $5,500 for 2 contraventions of s 340 - FW Act
Joseph McDonald: $6,500 for 1 contravention of s 340 - FW Act
Steven McCann: $2,500 for 1 contravention of s 340 - FW Act
Michael Buchan: $5,000 for 1 contravention of s 340 - FW Act
WAD95/2014
CFMEU: $44,000 for 2 contraventions of s 348 - FW Act
Joseph McDonald: $6,500 for 1 contravention of s 348 - FW Act
Michael Buchan: $5,000 for 1 contravention of s 348 - FW Act
WAD135/2014
CFMEU: $88,000 for 4 contraventions of s 346 - FW Act
David Noonan: $2,500 for 1 contravention of s 346 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Joseph McDonald: $7,500 for 1 contravention of s 346 - FW Act
Michael Buchan: $6,000 for 1 contravention of s 346 - FW Act
Tawa Harris: $3,500 for 1 contravention of s 346 - FW Act
82.
ABCC v CFMEU (The
Kane Constructions Case) (No 2)
[2017] FCA 368
Federal Court of Australia - Melbourne
Jessup J
2 April 2014
and 22 May
2014
On 2 April and 22 May 2014, ten CFMEU organisers coordinated strike action across seven construction sites in Victoria where Kane Constructions Pty Ltd was the principal contractor
/ builder. The individual respondents organised most of the workers at these various sites, whether employed by Kane or by a variety of subcontractors, to engage in industrial action by walking off the job.
Liability decision on 1
March 2017
Penalty Decision on 11
April 2017
$590,800 comprising:
CFMEU: $490,000 for 12 contraventions of s.417 - FW Act
Michael Powell: $7,600 for 1 contravention of s.417 - FW Act
Peter Booth: $22,400 for 4 contraventions of s.417 - FW Act
Stephen Long: $6,400 for 1 contravention of s.417 - FW Act
Derek Christopher: $15,200 for 2 contravention s of s.417 - FW Act
Bill Beattie: $8,400 for 1 contravention of
s.417 - FW Act
John Perkovic: $7,200 for 1 contravention of s.417 - FW Act
Theo Theodorou: $7,200 for 1 contravention of s.417 - FW Act
Brendan Murphy: $11,600 for 2 contraventions of s.417 - FW Act
Gerard Benstead: $7,200 for 1 contravention of s.417 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Joseph Myles: $7,600 for 1 contravention of s.417 - FW Act
83.
ABCC v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2)
[2017] FCA 367
Federal Court of Australia – Melbourne
Jessup J
27, 28 and
31 March
2014
On 27, 28 and 31 March 2014, at the Australian Paper Mill De-Inking Project at Morwell, employees of contractors BMC and JBA engaged in industrial action by sitting in the sheds and not working.
On 28 March, Australian Paper, BMC and JBA each obtained section 420 interim orders from the Fair Work Commission (prohibiting further industrial action). Despite this, industrial action continued on the morning of 31 March. By around the middle of the day on 31 March, Australian Paper, BMC and JBA agreed to a compromise position with the union organisers in relation to the first aider request and all work resumed as normal later that day.
Union organisers Dodd (AMWU), Thornton (CFMEU) and Sharp (AWU) were held to be knowingly concerned in the employees’ contraventions.
Liability decision on 1
March 2017
Penalty decision on 11
April 2017
$101,500 comprising:
CFMEU: $45,000 for 1 contravention of
s.417 of the FW Act (also contravened
s.346 on 28 and 31 March, and s.421(1) on 31 March)
AMWU: $25,000 for 1 contravention of
s.417 of the FW Act (also contravened
s.346 on 28 and 31 March, and s.421(1) on 31 March)
AWU: $20,000 for 1 contravention of
s.417 of the FW Act (also contravened
s.346 on 28 and 31 March, and s.421(1) on 31 March)
Toby Thornton: $3,500 for 1 contravention of s.417 - FW Act (also contravened s.346 on 28 and 31 March, and s.421(1) on 31 March)
Steve Dodd: $4,500 for 1 contravention of s.417 - FW Act (also contravened
s.346 on 28 and 31 March, and s.421(1) on 31 March)
Jeff Sharp: $3,500 for 1 contravention of
s.417 - FW Act (also contravened s.346 on 28 and 31 March, and s.421(1) on 31 March)
84.
ABCC v CFMEU
[2017] FCAFC 53
22 October
2013
On 22 October 2013, CFMEU officials and organisers Michael Buchan, Joseph McDonald, Walter (Vinnie) Molina, Peter Joshua, Campbell McCullough and Tawa Harris attended the Perth
Terminal 1 construction project and organised
Admission of Liability
$242,000 comprising:
CFMEU: $195,000 for 5 contraventions of s.348 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Full Court of the Federal Court of Australia - Perth
North, Dowsett and Rares JJ
Appeal from Director of the Fair Work Building Industry Inspectorate v CFMEU [2016] FCA
616
about 100 protestors to blockade the site entrances denying access to about 160 workers and preventing work on site for that period with the intent of coercing contractors on site to comply with a lawful request to pay outstanding wages to employees of a sub-contractor.
Penalty decision on 30
May 2016
Appeal decision on 29
March 2017
Michael Buchan: $9,000 for 1 contravention of s.348 - FW Act
Joseph McDonald: $17,500 for 2 contraventions of s.348 - FW Act
Walter Molina: $9,000 for 1 contravention of s.348 - FW Act
Peter Joshua: $5,000 for 1 contravention of s.348 - FW Act
Campbell McCullough: $2,500 for 1 contravention of s.348 - FW Act
Tawa Harris: $4,000 for 1 contravention of s.348 - FW Act
85.
ABCC v CFMEU (Webb
Dock case)
[2017] FCA 62
Federal Court of Australia – Melbourne
Jessup J
5 March
2015
On 5 March 2015, CFMEU officials Joe Myles and Adam Hall organised a blockade of approximately 50 people preventing access to the Port of Melbourne expansion project.
The blockade was organised with the intent of coercing the head contractor McConnell Dowell Constructors and sub-contractor Coastal Steel to engage in industrial activity to comply with a request to have an enterprise agreement.
Admission of Liability
Penalty decision on 8
February 2017
$96,000 comprising:
CFMEU: $84,000 for 2 contraventions of
s.348 - FW Act
Joe Myles: $7,500 for 1 contravention of s.348 - FW Act (also contravened 1 x s.340, 1 x s.343, 1 x s.346)
Adam Hall: $4,500 for 1 contravention of s.348 - FW Act (also contravened 1 x s.340, 1 x s.343, 1 x s.346)
86.
ABCC v CFMEU (No 3)
[2017] FCA 10
Federal Court of Australia – Adelaide
Besanko J
22
November 2013
On 22 November 2013, State Assistant Secretary Aaron Cartledge and Assistant Secretary Michael McDermott attended a meeting on the New Royal Adelaide Hospital site with the Joint Venture Contractors and threatened industrial action against the Joint Venture if they took steps to enforce a Fair Work Commission order, with McDermott saying words to the effect, “there would be Armageddon “.
Liability decision on 31
May 2016
Penalty decision on 19
January 2017
$57,500 comprising:
CFMEU: $50,000 for 2 contraventions of
s.343 - FW Act
Aaron Cartledge: $3,750 for 1 contravention of s.343 - FW Act
Michael McDermott: $3,750 for 1 contravention of s.343 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
87.
ABCC v Construction, Forestry, mining and Energy Union & Anor
[2016] FCCA 3265
Federal Circuit Court of Australia – Brisbane
Judge Jarrett
11 April 2014
On 11 April 2014 at the Brooklyn construction project in Fortitude Valley, during a meeting between CFMEU official David Hanna and Hindmarsh Construction Australia Pty Ltd management, Hanna threatened further industrial action at the project unless Hindmarsh agreed to execute a Deed of Settlement in relation to related Fair Work Commission proceedings.
Admission of Liability
Penalty decision on 15 December 2016
$37,500 comprising:
CFMEU: $35,000 for 1 contravention of s.340(1)(b) - FW Act
David Hanna: $2,500 for 1 contravention of s.340(1)(b) - FW Act
88.
Director of the Fair Work Building Industry Inspectorate v Bolton (No 2)
[2016] FCA 817
Federal Court of Australia – Adelaide
Collier J
29 April 2014
22 May 2014
4 June 2014
On 29 April 2014, CFMEU officials David Bolton, Michael Huddy and Brendan Pitt attended the Southern Expressway construction site to hold discussions with employees. The officials failed to give notice of their entry and refused to leave the site when directed by the occupier to do so and instead held discussions with employees for approximately 1 hour.
On 22 May 2014, CFMEU officials Aaron Cartledge and David Bolton attended the Flinders University construction site to hold discussions with employees. The officials failed to give notice of their entry and refused to leave when directed by the occupier to do so and instead held discussions with employees on the site for approximately 1 hour.
On 4 June 2014, CFMEU official Michael McDermott attended the St Mark’s construction site to hold discussions with employees.
McDermott failed to give notice of his entry, entered the site despite a direction from the occupier not to enter, and refused to leave the site when requested to do so instead holding discussions with employees on site for approximately 10 minutes.
Admission of Liability
Penalty decision on 19
July 2016
$132,000 comprising:
SAD 59 of 2015
David Bolton: $4,000 for 1 contravention of s.500 - FW Act
Michael Huddy: $2,000 for 1 contravention of s.500 - FW Act
Brendan Pitt: $4,000 for 1 contravention of s.500 - FW Act
CFMEU: $50,000 for 3 contraventions of
s.500 - FW Act SAD 60 of 2015
Aaron Cartledge: $4,000 for 1 contravention of s.500 - FW Act
David Bolton: $4,000 for 1 contravention of s.500 - FW Act
CFMEU: $40,000 for 2 contraventions of
s.500 - FW Act SAD 61 of 2015
Michael McDermott: $4,000 for 1 contravention of s.500 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
CFMEU: $20,000 for 1 contravention of
s.500 - FW Act
89.
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, mining and Energy Union
[2016] FCCA 1692
Federal Circuit Court of Australia – Brisbane
Judge Jarrett
7 - 12 April
2014
On 7 April 2014, CFMEU officials Chad Bragdon, Jade Ingham and John Cummins entered the Brooklyn Project and interrupted the morning toolbox meeting and encouraged workers to stop work to attend a meeting with them outside.
Following the meeting, the majority of the workers stopped work for the day and refused to return to work on 8, 9, 10, 11 and 12 April.
The industrial action was organised by the officials to attempt to compel the head contractor (Hindmarsh) to re-employ, or cause to be reinstated, a delegate of the CFMEU.
Admission of liability
Penalty decision on 8
July 2016
$53,000 comprising:
CFMEU: $45,000 for 1 contravention of
s.417 of the FW Act
Chad Bragdon: $3,000 for 1 contravention of s.417 of the FW Act
Jade Ingham: $2,500 for 1 contravention of s.417 of the FW Act
John Cummins: $2,500 for 1 contravention of s.417 of the FW Act
90.
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2016] FCA 798
Federal Court of Australia – Perth
Barker J
4 June 2014
On 4 June 2014, CFMEU WA Assistant Secretary Joseph McDonald met with approximately 60 workers outside the Lakeside Joondalup Redevelopment to discuss a dispute over strike pay.
McDonald organised a vote on whether the workers wished to withdraw their labour. The majority of the meeting voted in favour as a result approx. 50% of the workforce (about 300 workers) did not perform any work on 4 June 2014.
Admission of liability
Penalty decision on 8
July 2016
$61,000 comprising:
CFMEU: $27,500 for 1 contravention of
s.417 - FW Act
Joseph McDonald: $5,500 for 1 contravention of s.417 - FW Act
Against 28 employee respondents:
$1,000 each for 1 contravention each of
s.417 - FW Act
91.
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra’s Edge Case)
17,18 & 19
February 2011
On 17 February 2011, five CFMEU officials formed a picket line at the Yarra Edge Tower 8 building site at Docklands with the intent of coercing Grocon to employ an additional person on the crane crew and also to coerce Grocon to accept the CFMEU’s nominated persons as employee representatives on site.
Trial and appeal [2015]
FCAFC 170.
Liability decision on 4
$178,450 comprising:
CFMEU: $85,000 for 1 contravention of
s.38 - BCII Act
Elias Spernavasilis: $12,500 for 1 contravention of s.38 - BCII Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
[2016] FCA 772
Federal Court of Australia – Melbourne
Jessup J
December 2015
Penalty decision on 1
July 2016
Shaun Reardon: $14,000 for 1 contravention of s.38 - BCII Act
Derek Christopher: $11,250 for 1 contravention of s.38 - BCII Act
Bill Beattie: $11,500 for 1 contravention of s.38 - BCII Act
Theo Theodorou: $9,500 for 1 contravention of s.38 - BCII Act
Bill Oliver: $34,700 for 5 contraventions of s.38 - BCII Act
92.
Director of the Fair Work Building Industry Inspectorate v Robinson & Ors
[2016] FCA 525
Federal Court of Australia – Darwin
Charlesworth J
19 June
2014
On 19 June 2014, CFMEU officials Michael Robinson and Shaun Taylor, and CEPU official Michael Haire organised approximately 66 workers employed on the INPEX construction project to engage in industrial action with the employees refusing to board buses at two of the ‘park & ride’ stations located at Yarrawonga and the airport.
In the weeks leading up to the industrial action, a flyer was distributed complaining of congestion at the “park & ride’ facilities and providing notice of the meetings to be held on 19 June 2014.
Admission of liability
Penalty decision on 16
May 2016
$94,600 comprising:
CFMEU: $39,000 for 1 contravention of
s.417 - FW Act
CEPU: $35,500 for 1 contravention of
s.417 - FW Act
Michael Robinson: $6,700 for 1 contravention of s.417 - FW Act
Shaun Taylor: $6,700 for 1 contravention of s.417 - FW Act
Michael Haire: $6,700 for 1 contravention of s.417 - FW Act
93.
Director of the Fair Work Building Industry Inspectorate v O’Connor
[2016] FCA 415
Federal Court of Australia – Adelaide
31 March, 28
April, 5 & 6
May 2014.
On 31 March 2014, CFMEU official James O’Connor entered the Adelaide High School construction site seeking to exercise rights under Part 3-4 of the FW Act. While on site, he acted in an improper manner by: entering without providing notice and despite being refused entry; remaining on the site for 20 minutes; and holding discussions with employees in places not agreed with the occupier.
Admission of liability
Penalty decision on 22
April 2016
$30,000 comprising:
CFMEU: $27,500 for 1 contravention of
s.500 - FW Act
James O’Connor: $2,500 for 1 contravention of s.500 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
White J
On 5 May 2014, CFMEU officials Michael McDermott, Luke Stephenson and Derek Christopher entered the Art Apartments construction site in Adelaide. McDermott and Stephenson, while seeking to exercise rights under Part 3-4 of the FW Act, acted in an improper manner by: entering without providing notice and despite being refused entry; failing to produce an entry notice or permit upon request; and holding discussions with employees in places not agreed with the occupier. Christopher, who did not hold an entry permit, was involved in the contraventions of McDermott and Stephenson.
On 6 May 2014, CFMEU officials Michael McDermott and Derek Christopher entered the Ibis Hotel construction site in Adelaide. McDermott, while seeking to exercise rights under Part 3-4, acted in an improper manner by: entering the site with Christopher without providing notice and having been refused entry; remaining on site for 45 minutes despite being directed to leave; and holding discussions with employees in places not agreed with the occupier. Christopher, who did not hold an entry permit, was involved in McDermott’s contravention.
On 28 April 2014, CFMEU officials David Bolton and Michael Huddy entered the Minda Homes construction site in South Australia seeking to exercise rights under Part 3-4 of the FW Act.
While on site, Bolton and Huddy acted in an improper manner by: seeking to enter pursuant to a false statement “We don’t need a notice”; entering without providing notice and despite being refused entry; holding discussions with employees in places not agreed with the occupier; ignoring a request by the occupier to leave and
Admission of liability
Penalty decision on 22
April 2016
Admission of liability
Penalty decision on 22
April 2016
Admission of liability
Penalty decision on 22
April 2016
Admission of liability
$94,250 comprising:
CFMEU: $85,000 for 3 contraventions of
s.500 - FW Act
Michael McDermott: $3,750 for 1 contravention of s.500 - FW Act
Luke Stephenson: $2,500 for 1 contravention of s.500 - FW Act
Derek Christopher: $3,000 for 1 contravention of s.500 - FW Act.
$66,750 comprising:
CFMEU: $60,000 for 2 contraventions of
s.500 - FW Act
Michael McDermott: $3,750 for 1 contravention of s.500 - FW Act
Derek Christopher: $3,000 for 1 contravention of s.500 - FW Act.
$51,500 comprising:
CFMEU: $48,000 for 2 contraventions of
s.500 - FW Act
David Bolton: $2,000 for 1 contravention of s.500 - FW Act
Michael Huddy: $1,500 for 1 contravention of s.500 - FW Act.
$146,250 comprising:
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
remaining for 30 minutes and; failing to produce an entry notice or entry permit upon request.
On 5 May 2014, CFMEU officials Michael McDermott, Luke Stephenson and Derek Christopher entered the Quest South construction site in Adelaide. McDermott and Stephenson, while seeking to exercise rights under Part 3-4 of the FW Act, acted in an improper manner by: entering and remaining on site with an unidentified CFMEU official without providing notice and despite being refused entry; failing to produce an entry notice or permit upon request; remaining on site while a further 4 CFMEU officials arrived with the common purpose of gaining access; and holding discussions with employees on the site.
Christopher used his elbow and shoulder to push a representative of the occupier out of a doorway. Stephenson was present and remained on site after the ‘Christopher incident’. Christopher, who did not hold an entry permit, was involved in the contraventions of McDermott and Stephenson.
Stephenson and Christopher took action with intent to coerce the head contractor to allow the CFMEU officials into the lunch shed to talk to the workers on the site.
Penalty decision on 22
April 2016
CFMEU: $131,500 for 3 contraventions of s.500 of the FW Act and 2 contraventions of s.348 - FW Act
Michael McDermott: $3,750 for 1 contravention of s 500 - FW Act
Luke Stephenson: $4,500 for 1 contravention of s 500 and 1 contravention of s 348 - FW Act
Derek Christopher: $6,500 for 1 contravention of s 500 and 1 contravention of s 348 - FW Act
94. `
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2016] FCA 414
11 & 22
November 2013
On 11 November 2013, CFMEU official Luke Stephenson entered the South Australian Health and Medical Research Institute construction site (SAHMRI site) in Adelaide seeking to exercise rights under Part 3-4 of the FW Act. Stephenson acted in an improper manner by failing to provide notice of the entry and remaining on the site for 30 minutes after he was asked to leave. CFMEU State Secretary Aaron Cartledge, by directing
Stephenson to enter the site without providing
Liability decision on 20 November 2015
Penalty decision on 22
April 2016
$54,200 comprising:
CFMEU: $48,000 for 2 contraventions of
s.500 – FW Act
Luke Stephenson: $1,750 for 1 contravention of s.500 – FW Act
Aaron Cartledge: $3,750 for 1 contravention of s.500 – FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Federal Court of Australia – Adelaide
White J
notice, was knowingly concerned in Stephenson’s contravention.
On 22 November 2013, CFMEU official David Kirner entered the SAHMRI site seeking to exercise rights under Part 3-4. Kirner acted in an improper manner by failing to provide notice of the entry, failing to complete all of formalities in the
site visitors’ book and by failing to leave on request.
David Kirner: $700 for 1 contravention of
s.500 – FW Act
95.
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2016] FCA 413
Federal Court of Australia – Adelaide
White J
30 & 31
October, 12
& 13
November 2013
On 4 occasions in October and November 2013, 11 CFMEU officials attended one or more of 4 Lend Lease Building Contractors Pty Ltd construction sites in and around Adelaide seeking to exercise rights under Part 3-4 of the FW Act.
While on the sites, each of the officials acted in an improper manner by doing one or more of the following: failing to provide notice, remaining on site after being asked to leave, holding discussions with workers after being asked to leave, distracting workers by speaking to them; failing to comply with the reasonable directions of a site escort. One official failed to comply with a safety requirement to remain outside an exclusion zone.
Four of the officials threatened to cause work to stop on the site with intent to coerce Lend Lease to fly the CFMEU flag on a crane hook (or were knowingly concerned in the contravention).
Liability decision on 20 November 2015
Penalty decision on 22
April 2016
$494,150 comprising:
CFMEU: $456,000 for 16 contraventions of s.500, 1 contravention of s.499, and 4 contraventions of s.348 - FW Act
Mark Gava: $3,800 for 2 contraventions of s.500 and 1 contravention of s.348 - FW Act
Mohammed Kalem: $3,750 for 1 contravention of s.500 and 2 contraventions of s.348 - FW Act
John Lomax: $3,000 for 1 contravention of s.500 and 1 contravention of s.348 - FW Act
James O’Connor: $1,800 for 1 contravention of s.500 - FW Act
Bill Beattie: $5,300 for 2 contraventions of s.500 - FW Act
Michael McDermott: $9,700 for 3 contraventions of s.500 and 1 contravention of s.499 - FW Act
Stephen Long: $4,400 for 2 contraventions of s.500 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Luke Stephenson: $3,000 for 2 contraventions of s.500 - FW Act
Brett Harrison: $1,200 for 1 contravention of s.500 - FW Act
Darren Roberts: $2,200 for 1 contravention of s.500 - FW Act
96.
Director, Fair Work Building Industry Inspectorate v Myles & Anor
[2016] FCCA 772
Federal Circuit Court of Australia
Judge Jarrett
27 May 2014
On 27 May 2014, CFMEU official Michael Myles attended the QUT construction project and organised a meeting with workers in the carpark.
Myles demanded the head contractor stand down an employee for one day for causing safety issues on site and for the employee to re-inducted into the safety procedures and that workers would not return to work until this was done.
Various employees from 4 sub-contractors did not perform work for the remainder of the day.
Admission of Liability
Penalty decision on 8
April 2016
$52,000 comprising:
CFMEU: $45,000 for 1 contravention of
s.417 of the FW Act (declaration also imposed for 1 contravention of s.355 of the FW Act)
Michael Myles: $7,000 for 1 contravention of s.417 of the FW Act (declaration also imposed for 2 contraventions of s.355 of the FW Act)
97.
Director, Fair Work Building Industry Inspectorate v Vink & Anor
[2016] FCCA 488
Federal Circuit Court of Australia
Judge Vasta
5 March
2014
On 5 March 2014 CFMEU official Scott Vink attended the Pacific Fair redevelopment project at Broadbeach purportedly exercising right of entry for the purpose of enquiring into a suspected contravention of the WHS Act.
Whilst on the site, Vink removed personal property and food from the employees shed and shouted foul and offensive language towards an employee of the occupier.
Admission of Liability
Penalty decision on 9
March 2016
$57,000 comprising:
CFMEU: $48,000 for 1 contravention of
s.500 of the FW Act
Scott Vink: $9,000 for 1 contravention of
s.500 of the FW Act
98.
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy
14 & 22 June
2013, 17
July 2013
On 14 June 2013 CFMEU official Ralph Edwards threatened to put Red & Blue scaffolding Pty Ltd out of business unless it employed a shop steward nominated by the CFMEU.
On 22 June 2013, Edwards organised CFMEU members at the La Scala construction site to
Trial and penalty hearing
Penalty decision on 22
$245,000 comprising:
CFMEU: $126,000 for 3 contraventions of s.355 - FW Act
CFMEU: $84,000 (suspended) for 2 contraventions of s.346 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Union (The Red and Blue Case) (No 2)
[2015] FCA 1462
Federal Court of Australia – Melbourne
Jessup J
prevent Red & Blue Scaffolding Pty Ltd from entering the site.
On 17 July 2013, Edwards organised CFMEU members at the Yarra Street construction site to prevent Red & Blue Scaffolding Pty Ltd from entering the site.
December 2015
Ralph Edwards: $21,000 for 3 contraventions of s.355 - FW Act
Ralph Edwards: $14,000 for 2 contraventions of s.346 - FW Act
99.
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Ors
[2015] FCA 1213
Federal Court of Australia – Melbourne
Tracey J
See also:
Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors
(No 2) [2014] VSC 134
(penalty)
17, 22, 23,
28, 29, 30 &
31 August
2012; 4 7 5
September 2012
The CFMEU embarked on a protracted campaign of unlawful industrial action, the purpose of which was wholly to prevent or curtail productive work on Grocon building sites. The campaign continued for 2 weeks and involved the blockading of entry points to the sites.
The conduct which gave rise to the various contraventions on the part of the CFMEU and the individual officials was undertaken in an effort to force Grocon to agree to demands made by the Union. Foremost amongst these demands was a requirement that Grocon employ persons nominated by the CFMEU so that these nominees could act as site representatives for the CFMEU. The CFMEU also wanted Grocon to agree to the display of CFMEU logos on clothing and equipment.
Trial and penalty hearing
Penalty decision on 11 November 2015
$151,000 comprising:
CFMEU: $95,000 for 42 contraventions of s.348 and 42 contraventions of s.355 of the FW Act.
John Setka: $19,750 for 9 contraventions of s.348, 9 contraventions of s.355, and 1 contravention of s.346 of the FW Act.
Shaun Reardon: $14,500 for 10 contraventions of s.348 and 10 contraventions of s.355 - FW Act
Derek Christopher: $3,000 for 3 contraventions of s.348 and 3 contraventions of s.355 - FW Act
Elias Spernavasilis: $7,000 for 9 contraventions of s.348 and 9 contraventions of s.355 - FW Act
Bill Oliver: $3,500 for 4 contraventions of
s.348 and 4 contraventions of s.355 - FW Act
Ralph Edwards: $5,250 for 5 contraventions of s.348 and 5 contraventions of s.355 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Gareth Stephenson: $1,000 for 2 contraventions of s.348 and 2 contraventions of s.355 - FW Act
Craig Johnston: $2,000 for 4 contraventions of s.348 and 4 contraventions of s.355 - FW Act
100.
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case)
[2015] FCA 1173
Federal Court of Australia – Melbourne
Jessup J
1 & 22
August 2013
On 1 August 2013, CFMEU official Joseph Myles threatened John Holland Pty Ltd, the head contractor responsible for the construction of a rail separation and upgrade of the Mitcham train station, that he would organise a large number of people to occupy the entrance of the site to prevent work from being carried out unless John Holland engaged a CFMEU delegate on site.
On 22 August 2013, Myles directed and encouraged employees of sub-contractors engaged by John Holland not to work on site and threatened the managing director of one sub- contractor that if his employees presented for work on site the following day his company would not have a job in Melbourne.
Agreed Statement of Facts
Penalty decision on 4 November 2015
$55,125 comprising:
Joseph Myles: $6,375 for 2 contraventions of s.348 of the FW Act.
CFMEU: $48,750 for 2 contraventions of
s.348 of the FW Act.
101.
Director of the Fair Work Building Industry Inspectorate v Cartledge (No 2)
[2015] FCA 851
Federal Court of Australia – Adelaide
Mansfield J
13 May 2014
On 25 March 2014, the court issued an injunction requiring O’Connor and other officials not to enter the Adelaide Hospital construction site unless they were lawfully exercising their rights of entry under Part 3-4 of the FW Act.
On 13 May 2014, O’Connor entered the hospital construction site in accordance with a right of entry notice. Whilst on site O’Connor threatened
industrial action unless a subcontractor employed a member of the CFMEU executive.
Trial and penalty hearing
Penalty decision on 14
August 2015
$12,000 comprising:
Jim O’Connor: $12,000 for contempt of court
Costs on a solicitor own client basis
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
102.
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 3)
[2015] FCA 845
Federal Court of Australia – Adelaide
Mansfield J
17, 19 & 26
June 2013
On 17, 19 June 2013, Pearson entered the Central Apartments construction site in Darwin exercising rights of entry not for a legitimate purpose but to indicate to the occupier the extent to which the CFMEU was capable of disrupting the site to encourage employees on the site to join the union for the occupier to pay their membership fees.
On 26 June 2013, Olsen entered the site exercising rights of entry and threatened unlawful economic pressure upon the occupier unless it paid membership fees to the Union on behalf of its employees.
Trial and penalty hearing
Penalty decision on 14
August 2015
$45,600 comprising:
CFMEU: $35,000 for 2 contraventions of
s.348 of the FW Act
Kane Pearson: $6,000 for 2 contraventions of s.500 of the FW Act
Adam Olsen: $4,600 for 1 contravention of s.348 and 1 contravention of s.500 of the FW Act
103.
Director of the Fair Work Building Industry Inspectorate v Upton
[2015] FCA 672
Federal Court of Australia – Perth
Gilmour J
8 October
2012 & 13
February 2013
On 8 October 2012, Upton attended Bechtel’s Wheatstone Gas project near Onslow to hold discussions under the FW Act. Whilst on site Upton behaved in an improper manner by abusing a Bechtel employee using obscene and racist remarks.
On 13 February 2013, Upton again attended the Wheatstone project to hold discussions with employees and behaved in an improper manner by failing to comply with a direction not to hold discussions in the ‘wet mess’ area of the project.
Agreed statement of facts
Penalty decision on 3
July 2015
$24,000 comprising:
CFMEU: $20,000 for 2 contraventions of
s.500 of the FW Act
Bradley Upton: $4,000 for 2 contraventions of s.500 of the FW Act
104.
Director, Fair Work Building Industry Inspectorate v Paul Cradden, Joseph Myles, Mark O’Brien, Mike Davis, Jack Cummins and Construction, Forestry, Mining and Energy Union
13, 14, 15,
16, 17, 19 &
21 March
2012
In February and March 2012, Grocon Constructions Qld Pty Ltd and the CFMEU were engaged in bargaining a proposed enterprise agreement. Between 13 March 2012 and 21 March 2012 various officials of the CFMEU engaged in non-protected industrial action at the Common Ground project in South Brisbane. The action included obstructing access to the site,
Liability not contested
Penalty decision on 12
June 2015
$545,000 comprising:
CFMEU: $400,000 for 25 contraventions of s.44 of the BCII Act
Joseph Myles: $40,000 for 4 contraventions of s.44 of the BCII Act
Paul Cradden: $30,000 for 6 contraventions of s.44 of the BCII Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
[2015] FCA 614
Federal Court of Australia – Brisbane
Logan J
upsetting, intimidating, abusing and threatening Grocon employees and sub-contractors.
Mark O’Brien: $30,000 for 6 contraventions of s.44 of the BCII Act
Jack Cummins: $25,000 for 5 contraventions of s.44 of the BCII Act
Mike Davis: $20,000 for 4 contraventions of s.44 of the BCII Act
105.
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2)
[2015] FCA 407
Federal Court of Australia - Melbourne
Tracey J
19
December 2013
20 January
2014
18 February
2014
20, 21, 26 &
27 March
2014
15 April 2014
On various dates in 2013 and 2014 the CFMEU and its official Gareth Stephenson blockaded various entries at the Bald Hills Wind Farm with intent to coerce Hazel Bros Group Pty Ltd to make an enterprise agreement with the CFMEU and with the intent to coerce sub-contracting companies to employ a particular person.
Liability not contested
Penalty decision on 1
May 2015
$109,500 comprising:
CFMEU: $15,000 for 2 contraventions of s 340(1)(a)(iii) of the FW Act
CFMEU: $15,000 for 1 contravention of s 340(1)(a)(ii) of the FW Act
CFMEU: $72,500 for 4 contraventions of s 355(a) - FW Act
Gareth Stephenson: $5,000 for 1 contravention of s 494 - FW Act
Gareth Stephenson: $2,000 for 1 contravention of s 355(a) - Act
Further: The Court ordered pursuant to s 545(1) of the FW Act that until all work has been completed or is subject to order:
The CFMEU including its employees or officials is restrained from hindering access/ egress from the Site; restrained from counselling, procuring, encouraging or persuading any person or persons not to enter the Site; restraining threatening, abusive or harassing action against persons seeking to enter/exit the Site.
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
106.
Director of the Fair Work Building Industry Inspectorate v CFMEU
[2015] FCA 353
Federal Court – Melbourne
Tracey J
28 June
2013 & 31
July 2013
CFMEU officials Danny Berardi and Shaun Reardon entered a construction site in Hawthorne and made threats of industrial action with the intent of coercing the head contractor Element 5 Pty Ltd to enter into an enterprise agreement with the CFMEU
Trial
Penalty decision on 20
April 2015
Penalty hearing on 24
& 26 March
2015
$43,000 comprising:
$20,000 against the CFMEU for 1 contravention each of ss.340,343 & 348 of the FW Act on 28 June 2013
$8,500 against the CFMEU for 1 contravention each of ss.340, 343 & 348 of the FW Act on 31 July 2013
$6,000 against Berardi for 1 contravention each of ss.340, 343 & 348 of the FW Act on 28 June 2013
$2,500 against Berardi for 1 contravention each of ss.340, 343 & 348 of the FW Act on 31 July 2013
$6,000 against Reardon for 1 contravention of s.343 of the FW Act on 28 June 2013
107.
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union
[2015] FCA 226
Federal Court – Melbourne
Tracey J
15 April 2014
On 31 March 2014 the Director commenced proceedings against Stephenson and the CFMEU for organising blockades at the Bald Hills Wind Farm Project (the civil proceedings).
On 2 April 2014, Stephenson and the CFMEU gave an undertaking to not engage in further blockades as part of the civil proceedings.
On 15 April 2014, Stephenson and the CFMEU organised further blockades of the project in breach of the undertaking and also failed to file affidavit material in compliance of court orders issued on 16 April 2014 setting out steps to be taken to publish the order on the CFMEU’s website and provide a written copy of the order to various CFMEU officers.
Liability not contested
Penalty decision on 17
March 2015
$125,000 comprising:
$100,000 against the CFMEU for two charges of contempt for not complying with the undertaking on 15 April 2014
$25,000 against the CFMEU for not complying with the court order to file affidavit material
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
108.
Director of the Fair Work Building Industry Inspectorate v Stephenson
[2014] FCA 1432
Federal Court - Adelaide
White J
31 March
2014 (SAD
138 of 2014)
31 March
2014 (SAD
140 of 2014)
7 April 2014
(SAD 139 of
2014)
1 May 2014
(SAD 141 of
2014)
CFMEU officials exercising rights of entry on various constructions sites in Adelaide (the Leabrook site on 31 March 2014; the Somerton Park site on 31 March 2014; the Somerton Park site on 7 April 2014; the Grenfell Street site on 1 May 2014).
Officials contravened s.500 of the Fair Work Act by engaging in conduct including failing to give notice, failing to comply with reasonable directions including not to enter the site and to leave the site, and CFMEU official Perkovic engaging in conduct on the Grenfell Street site whereby he engaged in a verbal tirade against a FWBC Inspector.
In response to a request to produce their entry permits and an entry notice, Mr McDermott and Mr Perkovic said words to the effect of "Fuck off", "Fuck yourself".
At one point, Mr Perkovic’s stance and manner was provocative, bullying and intimidating during an unpleasant incident involving him and a Mr Flynn.
The conduct of each personal respondent constituting each contravention was taken to be conduct of the CFMEU.
Agreed statement of facts
Penalty decision on 23 December 2014
$205,100 comprising:
$180,000 against the CFMEU for the officials' contraventions of s.500
$4,000 against Stephenson for 2 contraventions of s.500 of the FW Act
$1,000 against Smart for 1 contravention of s.500 of the FW Act
$3,800 against Bolton for 2 contraventions of s.500 of the FW Act
$1,100 against Vitler for 1 contravention of s.500 of the FW Act
$800 against Huddy for 1 contravention of s.500 of the FW Act
$4,000 against McDermott for 1 contravention of s.500 of the FW Act
$800 against Jarrett for 1 contravention of s.500 of the FW Act
$1,100 against Sloane for 1 contravention of s.500 of the FW Act
$3,500 against Pitt for 1 contravention of s.500 of the FW Act
$5,000 against Perkovic for 1 contravention of s.500 of the FW Act
109.
Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors
August and September 2012
The CFMEU conducted a blockade at Grocon's Emporium and McNab construction sites in August and September 2012.
The CFMEU appealed regarding both liability and the penalty awarded. The Victorian Court of
31 March 2014 (penalty)
24 October
2014 (appeal)
$1.15 million for criminal contempt against the CFMEU comprising of:
$250,000 for 28 August 2012
$250,000 for 29 August 2012
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
(No 2) [2014] VSC 134
(penalty)
Supreme Court of Victoria - Cavanough J
[2014] VSCA 261
(appeal)
Appeal dismissed the appeal, finding the fines were not disproportionately heavy.
$250,000 for 30 August 2012
$250,000 for 31 August 2012
$150,000 for 5 September 2012
110.
Director of the Fair Work Building Industry Inspectorate v Cartledge
[2014] FCA 1047
Federal Court - Adelaide
Mansfield J
19 and 20
March 2014
CFMEU officials seeking to exercise rights of entry on a construction site at 50 Flinders Street, Adelaide on 19 & 20 March 2014.
Officials contravened s.500 of the FW Act by engaging in conduct including failing to give notice, failing to comply with reasonable directions including not to enter the site, and engaging in a physical altercation to gain access to the site.
Agreed statement of facts
Penalty decision on 2
October 2014
$152,600 comprising:
$130,000 against the CFMEU for the officials' contraventions of s.500 on 19 & 20 March
$6,000 against O’Connor for 2 contraventions of s.500 - FW Act ($1,500 for 19 March and $4,500 for 20 March)
$9,000 against Pitt for 2 contraventions of s.500 - FW Act ($3,000 for 19 March and $6,000 for 20 March)
$3,000 against Cartledge for 1 contravention of s.500 - FW Act
$4,000 against Bolton for 1 contravention of s.500 - FW Act
$600 against Stephenson for 1 contravention of s.500 - FW Act
111.
Brookfield Multiplex Engineering and Infrastructure Pty Ltd v McDonald
[2014] FCA 389
Federal Court - Perth
25, 26 and
27 March
2013
CFMEU officials Joseph McDonald and Walter Molina attended the Mundaring Water Treatment Plant construction site on 25 March 2013 and made demands of Brookfield Multiplex to perform a safety inspection and for workers to remain in the sheds following a safety incident. Multiplex refused and Mr McDonald and Mr Molina organised 150 employees to take industrial action.
Statement of Agreed Facts & Agreed Penalties (ranges)
$123,000 comprising:
$95,000 against the CFMEU for 1 contravention of s.346, 2 contraventions of s.348, and 2 contraventions of s.417 - FW Act
$21,000 against McDonald for 2 contraventions of s.346, 8
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
North J
Mr McDonald and Mr Molina attended the site again on 26 and 27 March 2013 engaging in coercive conduct and again organising industrial action. On 27 March 2013, Mr McDonald was involved in a scuffle threatening employees attempting to enter the site. Mr McDonald also admitted to organising industrial action during an earlier incident on 4 October 2012.
Penalty decision on 11
March 2014
contraventions of s.348, and 4 contraventions of s.417 - FW Act
$7,000 against Molina for 6 contraventions of s.348, and 3 contraventions of s.417 - FW Act
112.
Brookfield Multiplex FSH Contractor Pty Ltd v McDonald
[2014] FCA 359
Federal Court - Perth North J
15 and 16 February 2013
CFMEU officials Mr Joseph McDonald and Graham Pallott attended the Fiona Stanley Hospital construction site and addressed a meeting of 400 workers.
As a result, the workforce did not attend work at the site on 15 and 16 February 2013.
Statement of Agreed Facts & Agreed Penalties (ranges).
Penalty decision on 11
March 2014
$61,000 comprising:
$48,000 against the CFMEU for a contravention of s.348 and 1 contravention of s.417 - FW Act
$9,500 against McDonald for 1 contravention of s.348 and 1 contravention of s.417 - FW Act
$3,500 against Pallott for 1 contravention of s.348 and 1 contravention of s.417 - FW Act
$250,000 in compensation
113.
Director of the Fair Work Building Industry Inspectorate v McDermott
[2014] FCA 160
Federal Court - Adelaide
White J
22 June
2012
CFMEU official Michael McDermott attended the Harris Scarfe construction project and threatened to organise industrial action unless a former employee was reinstated.
Each of the respondents contravened s.355 by (a) organising employees of BD Steel Fixing (SA) Pty Ltd to agree not to work until Mr Dominick Lewis was reinstated; and (b) threatening that employees of BD Steel Fixing (SA) Pty Ltd would not work until Mr Lewis was reinstated, with the intention to coerce BD Steel Fixing (SA) Pty Ltd to accede to the demand to reinstate Mr Lewis.
Statement of Agreed Facts & Penalties
Penalty decision on 5
March 2014
$17,820 comprising:
$16,500 against the CFMEU for 1 contravention of s.355 - FW Act
$1,320 against Michael McDermott for 1 contravention of s.355 - FW Act
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
114.
Director of the Fair Work Building Industry Inspectorate v Myles & Ors
[2014] FCCA 1429
Federal Circuit Court - Brisbane
Judge Burnett
11 February
2010
CFMEU and BLF officials in exercising rights of entry on a construction site at 123 Albert Street, Brisbane, failed to comply with reasonable safety requirements and failed to wear appropriate personal protective equipment.
Liability decision 20 December 2013
Penalty decision 28
February 2014
$38,500 comprising:
$4,950 against Myles for 1 contravention of s.500 - FW Act
$4,950 against Pearson for 1 contravention of s.500 - FW Act
$2,200 against Treadaway for 1 contravention of s.500 - FW Act
$26,400 against the CFMEU for 1 contravention of s.500 - FW Act
115.
Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors
[2014] FCA 126
Federal Court - Perth Gilmour J
13 and 17 September 2012
CFMEU official Joseph McDonald attended the Zen Apartments constructions site on 13 September 2012 and threatened to organise a picket line unless the head contractor agreed to pay outstanding entitlements.
On 17 September 2012, Joseph McDonald returned to the site and organised a picket preventing workers from entering the site.
Statement of Agreed Facts and Penalties
Penalty decision on 24
February 2014
$35,640 comprising:
$5,940 against McDonald for 3 contraventions of s.348 - FW Act
$29,700 against the CFMEU for 3 contraventions of s.348 - FW Act
116.
Director, Fair Work Building Industry Inspectorate v Joseph McDonald & Ors
[2013] FCA 1431
Federal Court - Perth Barker J
21 February
2012
CFMEU and CFMEUW Joseph McDonald organised unlawful industrial action on the Citic Pacific Sino Iron Ore Mine Site on 21 February 2012. Joseph McDonald asked for a show of hands of who would go on strike for the day in support. A majority of workers raised their hands. 48 CIA employees and 29 PCM employees went on strike.
Agreed Statements of Facts and Penalties
Penalty decision on 20 December
2013
Penalties of $193,600 comprising:
$17,600 against McDonald (for 2 contraventions of s.38 of the BCII Act)
$88,000 against the CFMEU (for 2 contraventions of s.38 of the BCII Act)
$88,000 against the CFMEUW (for 2 contraventions of s.38 of the BCII Act)
117.
Brookfield Multiplex FSH Contractor Pty Ltd v McDonald
26 February
2013
On 15 February 2013, the Federal Court made orders against Joseph McDonald that he not attend within 100 meters of the Fiona Stanley
Hospital. On 26 February 2013, Joseph
Statement of Agreed Facts
$40,000 against McDonald for 1 charge of contempt of court (civil)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
[2013] FCA 1380
Federal Court - Perth Gilmour J
McDonald attended within 100 meters of the Fiona Stanley Hospital site and addressed a meeting of approximately 300 workers.
Penalty decision on 17 December 2013
118.
Cozadinos v Construction, Forestry, Mining and Energy Union and Jason Bell
[2013] FCA 1243
Federal Court - Tracey J
23 June
2008
Mr Bell of the CFMEU telephoned Bendigo scaffolding and threatened to prevent Bendigo from starting work at the site until his demands were met, including that there was an enterprise bargaining agreement in place with the union, in contravention of s.44 of the BCII Act.
Agreed statement of facts and penalty proposed
21 November
2013 (penalty)
$20,000 against the CFMEU.
119.
Director of the Fair Work Building Industry Inspectorate v McQueen, Bragdon, Hanna, Treadaway, Clark, Bland, CFMEU & BLFQ
BRG493/2012 [2013] FCCA 2130
Federal Circuit Court – Brisbane - Judge Burnett
19 and 20 November 2010
The Director issued proceedings against the CFMEU, BLFQ and six union officials for allegedly engaging in unlawful industrial action at three Laing O'Rourke sites in Queensland during 2010.
Penalty Orders given on 10 October
2013
Agreed penalty of
$55,500.00 in
aggregate
Penalties of $55,000.
CFMEU and BLFQ were held to be jointly and severally liable for the pecuniary penalty (for 1 contravention each of s.38 of the BCII Act)
120.
Director of the Fair Work Building Industry Inspectorate v CFMEU, Stephenson, Powell, MacDonald, Doyle, Benstead & Parker
31 August
2010
26 and 27 October 2010
The CFMEU pressured Abigroup Contractors Pty Ltd to employ particular CFMEU members on Abigroup’s Peninsula Link (PenLink) project.
The CFMEU and its organisers also engaged in unlawful industrial action at six Abigroup
Parties agreed certain facts and admission plus Penalties.
7 October 2013
$230,000 comprising:
CFMEU: $155,000 (for 3 contraventions of s.43 - BCII Act)
Doyle: $11,000 (1 contravention of s.43 and 1 contravention - s.38 BCII Act)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
[2013] FCA 1014
Federal Court – Melbourne - Gordon J
11
November 2010
construction projects at schools near the PenLink project.
Stephenson: $29,000 (3 contraventions of s.43)
Powell: $24,500 (2 contraventions of s.43)
MacDonald: $5,000 (2 contraventions of s.38)
Benstead: $3,000 (1 contravention of s.38)
Parker: $2,500 (1 contravention of s.38)
121.
Director of the Fair Work Building Industry Inspectorate v CFMEU & Beattie
[2013] FCA 981
Federal Court – Melbourne - Jessup J
8, 9 and 13
July 2010
Cockram Constructions was a building contractor at the Austin Hospital site, Heidelberg, Victoria. Beattie was a delegate of the CFMEU who encouraged workers to engage in unlawful industrial action regarding a pay dispute.
3 October 2013
Agreed penalties.
$15,000 comprising:
$12,500 against the CFMEU (for 1 contravention of s.417 - FW Act)
$2,500 against Bill Beattie (for 1 contravention of s.417 - FW Act)
122.
Director of Fair Work Building Industry Inspectorate v CFMEU, CFMEUW and McDonald
[2013] FCCA 1255
Federal Circuit Court - Perth
Judge Lucev
12
September 2008
Mirvac Constructions (WA) Pty Ltd was engaged to undertake building work at ‘The Peninsula Project’ in Burswood, WA.
On 12 September 2008 CFMEU and CFMEUW representative Joseph McDonald attended the Peninsula Project and addressed a meeting of Mirvac employees. The meeting was adjourned and reconvened. Approx. 100 workers then left the site and failed to perform work that they were engaged to perform for the remainder of the day.
McDonald’s role in the stoppage was unlawful industrial action in breach of the WR Act 1996.
4 September
2013
Applicant proposed penalty amounts of 25% of max penalties, whilst respondent's submitted a range of 0-10% of the maximum.
One contravention by each respondent of s.494(1) of the WR Act:
$7,260 comprising:
$3,300 against the CFMEU
$3,300 against the CFMEUW
$660 against McDonald
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
123.
Director of the Fair Work Building Industry Inspectorate v CFMEU & CEPU
[2013] FCA 846
Federal Court - Brisbane
Collier J
9 and 10 November 2011
Proceedings against the CFMEU, CEPU and seven union officials for taking - or threatening to take - unlawful industrial action against Watpac Construction (Qld) Pty Ltd. The action took place at three Watpac construction sites in Queensland with the intent to coerce Watpac to negotiate an EBA with the CFMEU, and not to engage subcontractors with non-union EBAs that had or did not have enterprise agreements with the union.
Penalty decision 20
August 2013
Orders:
The CFMEU pay a penalty of $99,000 in respect of contravention of s.43(1)(b) and s.44 of the BCII Act
The CEPU pay a penalty of $20,000 in respect of a contravention of s.43(1)(b) of the BCII Act
124.
Director, Fair Work Building Industry Inspectorate v Sutherland, Jarvis, O’Doherty, Pearson, Lynch, BLF, CFMEU & CEPU
No Decision attached; Order viewable per
BRG1008/2011
Federal Circuit Court – Brisbane - Judge Burnett
28 February
and 1 March
2011
Brookfield Multiplex Constructions Pty Ltd was the project manager for building work associated with the Gold Coast Hilton hotel (Surfers Paradise) and Wintergarden shopping precinct (Brisbane).
The CFMEU was involved in the withdrawal of labour from these sites.
Orders by consent given on 10 July
2013
Penalties of $65,000 comprising:
$50,000 against the CFMEU for 2 contraventions of s.38 of the BCII Act
$15,000 against the CEPU for 1 s.38 contravention
125.
Director of the Fair Work Building Industry Inspectorate v CFMEU, Berardi, Beattie, Theodorou, Pitt, Bell & Patching
[2013] FCA 515
2 and 14 September 2012
CFMEU and six representatives organised industrial action on five St Hilliers Victorian construction sites (Ararat prison, Watsonia Military Camp, Carlton apartment and social housing project, Ashwood apartment project and Canterbury housing complex) with the intent of coercing it to re-employ a delegate of the CFMEU.
31 May 2013
$115,000 comprising of:
CFMEU: $84,000 (8 contraventions of s.43 of the BCII Act)
Beattie: $10,500 (2 contraventions s.43)
Berardi: $9,500 (2 contraventions s.43)
Theodorou: $4500 (1 contravention s.43)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Federal Court - Melbourne
Jessup J
Bell: $3500 (1 contravention s.43)
Pitt: $3000 (1 contravention s.43)
126.
Director of the Fair Work Building Industry Inspectorate v CFMEU and Christopher
[2013] FMCA 160
Federal Magistrates Court - Melbourne
Whelan FM
9 October
2009
A CFMEU officer threatened with assault and repeatedly abused with obscene language a building company’s site manager with intent to coerce the company to comply with his request that the site shop steward be permitted to attend site inductions.
Penalty decision 20
February 2013
$10,000 against the CFMEU (for 1 contravention of s.348 of the FW Act)
127.
Lend Lease Project Management Construction (Australia) Pty Ltd v CFMEU
[2012] FCA 1144
Federal Court – Collier J
Regarding Injunction [2012] FCA 1273
28 February
2011 to 26
May 2011
The CFMEU, CEPU and officials engaged in unlawful industrial action and defied orders made by Fair Work Australia, contravened right of entry provisions and engaged in work stoppages at a Brisbane and Gold Coast construction site at various dates between 28 February 2011 and 26
May 2011.
Penalty decision 19
October 2012. Agreed penalties.
Judgment on Injunctions on 16 November
2012
$590,000 comprising:
$550,000 on the CFMEU and CEPU (jointly and severally liable) payable to Lend Lease (for 1x CEPU contravention of s.38 of the BCII Act and 12 CFMEU contraventions of s.38)
Kane Pearson: $6,450 (4 contraventions of s.38)
Scott Vink: $6,450 (2 contraventions of s.38)
O’Doherty: $4,300 (2 contraventions of s.38)
Hanna: $7,750 (6 contraventions of s.38)
Jarvis: $6,450 (4 contraventions of s.38)
Olsen: $6,450 (2 contraventions of s.38)
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Malone: $2,150 (1 contravention of s.38)
128.
Director, Fair Work Building Industry Inspectorate v CFMEU & Anor
[2012] FMCA 916
Federal Magistrates Court - Melbourne
Riley FM
13 March
2009
Hudson and the CFMEU encouraged workers to take strike action at the Rosso Apartment project in Carlton.
Penalty judgment 8
October 2012
$25,000 comprising of:
$7,500 imposed on Hudson for one contravention of s.38 of the BCII Act
$17,500 imposed on the CFMEU for one contravention of s.38 of the BCII Act by reason of vicarious liability for the conduct of Hudson
129.
Radisich v McDonald and CFMEU
[2012] FMCA 919
Federal Magistrates Court - Perth
25 February
2008
CFMEU WA assistant state secretary Joseph McDonald attended the Herdsman Business Park site on Walters Drive. He informed the site manager and workers that the CFMEU and Diploma management had agreed that all workers were required to be members of the CFMEU. He then organised industrial action that was not justified by his claims of risks to health and safety.
Penalty decision 5
October 2012
$34,980 against CFMEU and McDonald, comprising of:
McDonald: $1,980 for contravention of s.790(1) WR Act; $4,400 for contravention of s.38 BCII
CFMEU - $6,600 for contravention of s.790(1) WR Act; $22,000 for
contravention of s 38 BCII
130.
Director of the Fair Work Building Industry Inspectorate v CFMEU, McDonald & Buchan
[2012] FCA 966
Federal Court - Perth Buchanan J
2 February
2011, 10
June 2011,
23 June
2011, 27
June 2011
and 4 July
2011
Joseph McDonald entered Diploma’s Queens Riverside Apartments site with other CFMEU organisers and directed the Inner Strength workers to go on strike on 2 February 2011. On 10 June 2011, he organised a meeting at the site which caused workers to fail to attend work between 7:30am and 7:40am. He also organised and engaged in a blockade on the site on 23 June 2011, and made a threat to Diploma’s managing director on 27 June 2011 to continue stoppages. Joseph McDonald entered the site on 4 July 2011 and arranged for workers to attend a picket on the site.
Agreed statement of facts and agreed penalties
Penalty decision 4 September 2012
$200,000 against CFMEU and McDonald, comprising of:
CFMEU: $40,000 (2 contraventions of s.44 BCII Act)
McDonald: $10,000 (2 contraventions of s.44 BCII Act)
CFMEU: two contempts of court – totalling $100,000
McDonald: two contempts of court – totalling $50,000
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
131.
Helal v Brookfield Multiplex Ltd
[2012] FCA 653
(penalty) Federal Court Bromberg J
1 August
2009
A CFMEU officer threatened to organise or take action with intent to coerce a company to employ two people as building employees. This occurred in an aggressive telephone discussion between a CFMEU officer and the company’s general manager after the company dismissed the employees for misconduct.
Agreed statement of facts and agreed penalties proposed
Penalty decision 21
June 2012
$30,000 and declarations against the CFMEU for 1 contravention of s.43(1) BCII Act
132.
Director of the Fair Work Building Industry Inspectorate v Mates
[2012] FMCA 475
Federal Magistrates Court
O'Sullivan FM
19 October
2010 and 22 November 2010
Robert Mates was the Site Occupational Health and Safety Representative. He refused on two occasions to conduct safety inductions with employees who were not CFMEU members, amounting to a contravention of s.346 of the FW Act.
Statement of agreed facts and penalties
5 June 2012
Robert Mates - $3,500 comprising:
$1,750 for contravention on 19 October 2010.
$1,750 for contravention on 22 November 2010.
133.
Radisich v Molina & Ors (No 2) [2011] FMCA 66
(liability)
(No 3) [2012] FMCA
419 (penalty)
Federal Magistrates Court – Perth
Lucev FM
19 March
2008
A CFMEU organiser, Molina, made a false and misleading statement to Southern Wire workers that they had to be members of the CFMEU or CFMEUW or both of them, to work on the site.
Liability decision 11
February 2011
Penalty decision 25
May 2012
$9,240 comprising:
$660 and declarations against Molina
$3,960 and declarations against CFMEUW
$4,620 and declarations against CFMEU
all referable to 1 contravention of s.790(1)(a) WR Act
134.
ABCC v Christopher & Anor
[2012] FMCA 589
18 March
2010
On 18 March 2010 Christopher entered the site and conducted a meeting and told the employees it was the union policy to stop work while the ABCC was on site. The workers then left the site.
Agreed statement of facts and penalty
$20,000 against the CFMEU
NO.
CASE DETAILS
DATE OF CONDUCT
NATURE OF CONDUCT
DATE OF JUDGMENT
PENALTIES AND CONTRAVENTIONS
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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 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. 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. 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. 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. 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