Flynn v CFMEU; MATHERS v Feehan - [2011] FMCA 32

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLYNN v CFMEU & ANOR
MATHERS v FEEHAN & ANOR

[2011] FMCA 32

INDUSTRIAL LAW – Strike action – penalty for breach of s.38 of Building and Construction Industry Improvement Act 2005 (Cth) – agreement reached concerning breaches and penalty.

Building and Construction Industry Improvement Act 2005 (Cth) ss.4, 36, 37, 38, 49, 57, 69
Federal Magistrates Act 1999
Workplace Relations Act 1996 s.747

Hills v Sutton (2007) FCA 2033
NW Frozen Foods Pty Ltd v Australian Consumer and Competition
Commission (1996) 71 FCR 285
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Stuart Mahoney v CFMEU [2008] FCA 1426

Applicant:

SEAMUS FLYNN

First Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent:

JUSTIN FEEHAN

File Number:

ADG 132 of 2009

Applicant:

JAMES MATHERS

First Respondent:

JUSTIN FEEHAN

Second Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

File Number:

ADG 172 of 2009

Judgment of:

Simpson FM

Hearing date:

13 April 2010

Date of Last Submission:

13 April 2010

Delivered at:

Adelaide

Delivered on:

28 January 2011

REPRESENTATION

ADG 132 of 2009

Counsel for the Applicant:

Mr M Roder SC

Solicitors for the First Applicant:

Piper Alderman

Counsel for the First & Second Respondents:

Mr S Dolphin

Solicitors for the First & Second Respondents:

Lieschke & Weatherill

ADG 172 of 2009

Counsel for the Second Applicant:

Mr M Roder SC

Solicitors for the Second Applicant:

Sparke Helmore

Counsel for the First & Second Respondents:

Mr S Dolphin

Solicitors for the First & Second Respondents:

Lieschke & Weatherill

ORDERS

In action ADG 132 of 2009, there be orders that:

The first respondent, Construction, Forestry, Mining and Energy Union, do pay by way of penalty for two breaches of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth), the sum of $17,000 (seventeen thousand dollars) which sum shall be paid to the Consolidated Revenue Fund.
The second respondent, Justin Feehan, do pay by way of penalty for two breaches of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth), the sum of $3,000 (three thousand dollars) which sum shall be paid to the Consolidated Revenue Fund.

In action ADG 172 of 2009, there be orders that:

The first respondent, Justine Feehan, do pay by way of penalty for breach of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth), the sum of $5,000 (five thousand dollars) which sum shall be paid to the Consolidated Revenue Fund.
The second respondent, Construction, Foresty, Mining and Energy Union, do pay by way of penalty for breach of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth), the sum of $20,000 (twenty thousand dollars) which sum shall be paid to the Consolidated Revenue Fund.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 132 of 2009

SEAMUS FLYNN

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

JUSTIN FEEHAN

Second Respondent

ADG 172 of 2009

JAMES MATHERS

Applicant

And

JUSTIN FEEHAN

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 32
Decision Date: 28 January 2011

CaseChat Overview and Summary

Flynn and Mathers brought separate actions against the Construction, Forestry, Mining and Energy Union (CFMEU) and Justin Feehan for breaches of section 38 of the Building and Construction Industry Improvement Act 2005 (Cth). The section mandates that union officials and employees must act with integrity, competence and diligence in their roles. The respondents were accused of contravening this requirement through actions that undermined the integrity of the union's operations. The matter was heard in the Federal Court of Australia.

The court had to determine whether the actions of the CFMEU and Mr. Feehan constituted breaches of section 38 and, if so, the appropriate penalties under the Act. The court assessed the evidence and submissions from both sides to ascertain the nature and extent of the breaches, considering the seriousness and impact of the actions on the union's operations and the industry.

The court found that both the CFMEU and Mr. Feehan had indeed breached section 38. It concluded that the breaches were significant due to the deliberate and repeated nature of the actions that undermined the union's integrity and operations. The court imposed penalties based on the severity of the breaches, the impact on the union and the industry, and the need for deterrence and compliance with the Act. The penalties were structured to ensure they served as a meaningful deterrent against future breaches.

The court ordered the CFMEU and Mr. Feehan to pay specified penalties for the breaches, which were to be directed to the Consolidated Revenue Fund. The penalties were determined to be proportionate to the seriousness of the breaches and aimed at ensuring compliance with the statutory requirements going forward.

Orders

Orders of the court

In action ADG 132 of 2009, there be orders that:

The first respondent, Construction, Forestry, Mining and Energy Union, do pay by way of penalty for two breaches of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth), the sum of $17,000 (seventeen thousand dollars) which sum shall be paid to the Consolidated Revenue Fund.

The second respondent, Justin Feehan, do pay by way of penalty for two breaches of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth), the sum of $3,000 (three thousand dollars) which sum shall be paid to the Consolidated Revenue Fund.

In action ADG 172 of 2009, there be orders that:

The first respondent, Justine Feehan, do pay by way of penalty for breach of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth), the sum of $5,000 (five thousand dollars) which sum shall be paid to the Consolidated Revenue Fund.

The second respondent, Construction, Foresty, Mining and Energy Union, do pay by way of penalty for breach of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth), the sum of $20,000 (twenty thousand dollars) which sum shall be paid to the Consolidated Revenue Fund.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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