Gregor v Berardi
[2010] FMCA 805
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GREGOR v BERARDI & ANOR | [2010] FMCA 805 |
| INDUSTRIAL LAW – Penalty hearing – unlawful building industrial action – admitted contraventions – considerations on penalty – agreed penalty. |
| Building and Construction Industry Improvement Act 2005 (Cth), s.38 |
| Minister for Industry, Tourism & Resources v Mobil Oil [2004] FCA FC 72 Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 Construction Forestry Mining & Energy Union v Coal & Allied Operations Pty Ltd (No.2) (1999) 94 IR 231 Australian Ophthalmic Supplies Pty Limited v McAlary-Smith (2008) 165 FCR 560 Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65 |
| Applicant: | MURRAY GREGOR |
| First Respondent: | DANNY BERARDI |
| Second Respondent: | CONSTRUCTION FORESTRY, MINING AND ENERGY UNION |
| File Number: | MLG 85 of 2010 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 20 October 2010 |
| Date of Last Submission: | 20 October 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 20 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.Dalton |
| Solicitors for the Applicant: | Office of the Australian Building and Construction Commissioner |
| Counsel for the First and Second Respondents: | Ms E. Walters |
| Solicitors for the First and Second Respondents: | Construction, Forestry, Mining and Energy Union |
DECLARATION AND ORDERS
A penalty of $5,000 be imposed on the first respondent for his contravention of s.38 of the Building and Construction Industry Improvement Act 2005 arising from his conduct on 7 October 2008 when he imposed a ban on the performance of building work at the B Central student apartments project at 28 Queens Avenue, Hawthorn.
A penalty of $25,000 be imposed on the second respondent for its contravention of s.38 of the Building and Construction Industry Improvement Act 2005 arising from its vicarious liability for the conduct of the first respondent when on 7 October 2008 he imposed a ban on the performance of building work at the B Central student apartments project at 28 Queens Avenue, Hawthorn.
The penalties be paid to the Consolidated Revenue Fund within 28 days of the date of this Order.
The proceedings be otherwise dismissed with no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 85 of 2010
| MURRAY GREGOR |
Applicant
And
| DANNY BERARDI |
First Respondent
| CONSTRUCTION FORESTRY, MINING AND ENERGY UNION |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
On 22 January 2010 proceedings were commenced against Danny Berardi (“the first respondent”) and the Construction Forestry, Mining and Energy Union (CFMEU) (“the second respondent”) alleging breaches of the Building and Construction Industry Improvement Act 2005 (“the BCII Act”). Murray Gregor (“the applicant”) an inspector appointed pursuant to s.57 of the BCII Act, was substituted as the applicant in these proceedings by order made on 10 March 2010.
The applicant alleged conduct in breach of the BCII Act by the respondents at a building site in Victoria in October 2008.
The application
After the application had been filed, and in accordance with those above mentioned orders, on 18 March 2010 the applicant filed an amended statement of claim which sought the following:
“22.…
(a)Declarations pursuant to section 16(1) of the Federal Magistrates Act 1999 (Cth) that the respondents have contravened section 38 of the BCII Act.
(b)Orders pursuant to section 49(1)(a) of the BCII Act for pecuniary penalties to be imposed on the respondents in respect of their contraventions of s.38 of the BCII Act by their conduct on 7 October 2008;
(c)Orders pursuant to section 49(1)(b) of the BCII Act compensating the Relevant Employees referred to in the Statement of Claim for their lost wages caused by the respondents’ contravention of s.38 of the BCII Act;
(d)An order that the respondents pay the applicant’s costs;
(e)Any other order that the Court considers appropriate under s.49(1)(c) of the BCII Act.”
After a number of directions hearings[1] and two mediations on 8 October 2010 the parties filed a Statement of Agreed Facts which is Annexure A to these reasons. On 11 October 2010 the following orders were made by consent programming the matter for a penalty hearing today:
“1.The hearing date of Tuesday 12 October 2010 be vacated.
2.The subpoenas issued to Messrs. Cauneac, Hogan, Ivkovic, Djokic, Anderson and Smith be set aside.
3.The applicant will file and serve written contentions as to penalty by not later than 4.00 pm on Thursday, 14 October 2010.
4.The respondent will file and serve written contentions as to penalty by not later than 4.00 pm Monday, 18 October 2010.
5.The matter will be adjourned for a penalty hearing on 20 October 2010 at the Federal Magistrates Court of Australia at Melbourne commencing at 10.00 am.”
[1] see orders made on 10 March 2010, 11 June 2010 and 12 July 2010
Both parties filed submissions as contemplated by the above orders. The applicant filed submissions on 14 October 2010 and the respondents on 19 October 2010.
The Statement of Agreed Facts (“S.O.A.F”) and the abovementioned submissions make clear the respondents made certain admissions, the parties have an agreed position on penalty and the Court was only asked to consider what penalties ought be imposed on the respondents for reasons that will become clear presently.
At the penalty hearing today, the applicant was represented by Mr Dalton of Counsel, and the respondents by Ms Walters.
The applicant relied on the amended statement of claim, the S.O.A.F and the submissions referred to above and the respondents on the S.O.A.F and their submissions.
Background
The proceedings are brought in respect of events that occurred in October 2008. There was agreement on formal matters such as the applicant’s ability to bring these proceedings, the status of the respondents under the BCII Act and that the first respondent at all relevant times was acting in his capacity as an officer of the second respondent.[2]
[2] see paras 1-3 of S.O.A.F
The following summary, which is taken from the S.O.A.F, is necessary to understand the position of the parties on the appropriate (and agreed) penalties.
In 2008, B Central Constructions Pty Ltd (“B Central”) was responsible for a residential development project in Hawthorn, Victoria (“the Site”).
On 6 October 2008, B Central terminated the employment of Michael Metherell (“Metherell”), the Site peggy and employee occupational health and safety representative (OHS representative). B Central took this action because, despite warnings about his performance over 5 months, it regarded Metherell’s performance as unsatisfactory.
On 7 October 2008, Barry Smith (“Smith”) commenced work at the Site as an employee of B Central with the duties of the Site peggy.
On 7 October 2008, work was being carried out on the Site by employees of the following subcontractors:
a)Mount View Constructions Pty Ltd;
b)Gormar International Pty Ltd;
c)M & A Polimeni Plumbing Pty Ltd;
d)B Way Constructions Pty Ltd; and
e)Faris Matti Pty Ltd.
The employees of those subcontractors were performing, and were required to perform, work on the Site in accordance with the terms and conditions prescribed in an industrial instrument that applied to their employment, being the National Building and Construction Industry Award 2000, which applied by operation of the National Building and Construction Industry Common Rule Declaration 2005.
On the morning of 7 October 2008, the first respondent entered the Site and held a meeting with the employees after which they refused or failed to perform work.
Contraventions
As noted above the parties filed the S.O.A.F which relevantly for present purposes set out that at the abovementioned meeting on
7 October 2008:
“10.In that meeting, First Respondent was critical of the way that B Central had treated Metherell, including B Central’s support of Metherell in carrying out his duties as peggy and OHS representative. First Respondent said that the Relevant Employees needed to take action. He told them to stop work for a day or two until the issue was sorted out. He said that workers could relocate to another work site but if they could not be relocated, they were to go home. The effect of First Respondent’s conduct in this meeting was to direct the Relevant Employees to stop work on the Site for a day or two until the Metherell issue was sorted out.
11.Shortly after 10 am following First Respondent’s meeting with the Relevant Employees, the Relevant Employees failed or refused to perform any building work on the Site for the balance of the working day (the Stoppage).”
As is clear from the S.O.A.F at Annexure A it is acknowledged by the respondents by reason of the matters set out above that:
“12.By reason of paragraphs 10 and 11, the First Respondent engaged in building industrial action under s 36 of the BCII Act in that by his direction to the Relevant Employees to stop work on the Site, he banned work on the Site.
13.Berardi was motivated by the following purposes under s 36 of the BCII Act:
(a) supporting or advancing a claim against B Central to keep Metherell employed by it as the peggy cum (sic) OHS representative on the Site,
(b) advancing industrial objectives of the CFMEU;
(c) disrupting the performance of work on the Site.
14.The building industrial action engaged in by First Respondent was not “excluded action” under s 36 of the BCII Act.
15.Further, First Respondent’s action was “constitutionally-connected action” under s 36 of the BCII Act because:
(a)by operation of section 69 of the BCII Act and paragraph 2 herein, his action was action taken by the CFMEU;
(b)his action adversely affected B Central in its capacity as head contractor on the Site, in that the Stoppage transpired and B Central still had to incur fixed staff and administrative costs for that.
16.Accordingly, by reason of the above matters, First Respondent engaged in “unlawful industrial action” within the meaning of s 37 of the BCII Act and therefore contravened s 38 of the BCII Act.
17.Because of section 69 of the BCII Act and paragraph 2 herein, First Respondent’s conduct is taken to be the conduct of the CFMEU. Therefore, the CFMEU also contravened s 38 of the BCII Act.”
The relevant provisions of the BCII Act
Section 38 of the BCII Act provides:
“A person must not engage in unlawful industrial action. Grade A civil penalty.”
“[U]nlawful industrial action” is described in s 37 of the BCII Act as follows:
Building industrial action is unlawful industrial action if:
(a) the action is industrially-motivated; and
(b) the action is constitutionally-connected action; and
(c) the action is not excluded action.”
The expression “building industrial action” is defined in s 36(1) of the BCII Act to mean:
“(a)the performance of building work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work, the result of which is a restriction or limitation on, or a delay in, the performance of the work , where: (i) the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute (within the meaning of subsection (4)); or
(b)a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c)a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, that is adopted in connection with an industrial dispute (within the meaning of subsection (4)); or
(d)a failure or refusal by persons to attend for building work or a failure or refusal to perform any work at all by persons who for building work;
but does not include:
(e)action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees; or
(f)action by an employer that is authorised or agreed to, in advance and in writing, by or on behalf of employees of the employer; or
(g)action by an employee if:
(i)the action was based on a reasonable concern by the employee about an imminent risk to his or her heath or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was sage for the employee to perform
Note: See also subsection (2), which deals with the burden of proof of the exception in paragraph (g) of this definition.”
Further s.69 of the BCII Act provides:
(1)For the purposes of this Act, the following conduct in relation to a building association is taken to be conduct of the building association:
(a)conduct of the committee of management of the association;
(b)conduct of an officer or agent of the association acting in that capacity;
(c)conduct of a member, or group of members, of the association where the conduct is authorised by:
(i) the rules of the association; or
(ii) the committee of management of the association; or
(iii) an officer or agent of the association acting in that capacity;
(d)conduct of a member of the association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.
(2) Paragraphs (1)(c) and (d) do not apply if:
(a)a committee of management of the building association; or
(b)a person authorised by the committee; or
(c)an officer of the industrial association; has taken reasonable steps to prevent the action.
(3)In this section:
officer, in relation to a building association, includes:
(a)a delegate or other representative of the association; and
(b)an employee of the association.
The maximum penalties for a contravention of s.38 of the BCII Act are $22,000 for an individual and $110,000 for an organisation.
Approach to penalty proceedings
The factors relevant to a penalty for a contravention of the BCII Act have been set out in a number of decisions of the Federal Court such that the factors which are to be considered in relation to penalty are now well established; see, eg, Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [40]. The relevant considerations include:
·the nature and extent of the conduct which led to the breaches.
·the circumstances in which that relevant conduct took place.
·whether or not the breaches were deliberate.
·the nature and extent of any loss or damage sustained as a result of the breaches.
·whether there had been similar previous conduct by the respondent.
·whether the breaches were properly distinct or arose out of the one course of conduct.
·whether the party committing the breach had exhibited contrition.
·whether the party committing the breach had cooperated with the enforcement authorities.
·whether the party committing the breach had taken corrective action.
·the need for specific and general deterrence.
In submissions the parties took the Court to a number of decisions of the Federal Court where the approach to these sorts of proceedings has been considered.[3]
[3] see paras 6-7 of the applicant’s submissions
Each of the parties addressed what they contended were the relevant factors that should be considered in their submissions and it is to that stage that I now turn.
Consideration of factors on penalty
The S.O.A.F sets out the background to and nature of the unlawful conduct (i.e. the contraventions). The details relevant to the first three of the above mentioned factors have already been set out above In submissions the applicant contended the following matters were relevant:
“The need to protect the integrity of legislative rights and obligations
21.The problem with conduct of this kind if that it involves a resort to unlawful tools to prosecute or ventilate an issue of concern, instead of using the dispute resolution procedures and/or the statutory avenue under Part 12 subdivision 4B of the Workplace Relations Act 1996 (i.e. an unfair dismissal application at the relevant time).
22.In this regard, the Court should take account of the fact that the Award set out a procedure for settlement of disputes. In particular, subclause 11.1.2 provided as follows:
“Where the above procedures are being followed, work shall continue normally. No party shall be prejudiced as to final settlement by the continuation of work in accordance with this subclause. This subclause shall not apply to any dispute involving a bona fide safety issue.”
23.There is no reference in the respondents’ Defence or the SOAF that there was any dispute here that involved a bona fide safety issue.
Previous contraventions
24.The CFMEU has a long list of relevant prior contraventions (Attachment A).
25.As Tracey J observed in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 at [474] regarding the CFMEU:
“[s]imilar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions.”
26.Berardi has previously contravened workplace laws. On 16 December 2009, Berardi was fined $1,000 (suspended for two years) by the Court in Gregor v CFMEU & Anor [2009] FMCA 1266. The contravention arose when, on 19 July 2007, Berardi entered a building site at Bialik college in Hawthorn and held a meeting with the workers and directed them to stop work.
Deterrence
27.Deterrence is the primary objective of penalties. This requires a penalty that is meaningful.
28.Given the statutory purposes of the BCII Act, the need for general deterrence for BCII ACT contraventions is “particularly strong”.
29.In respect of the CFMEU, specific deterrence is an important factor here because the CFMEU is a repat offender.
30.Specific deterrence feeds into general deterrence. Industrial participants will not be deterred unless they see that the CFMEU is being deterred.
31.The penalty should “adequately reflect the systematic nature of the failure of the CFMEU to deter or prevent actions of the kind involved in this case and act as a spur towards effective action by the CFMEU and the State entities connected with it.”
In relation to general and specific deterrence the applicant’s submissions noted the statutory purposes of the BCII Act and the need for general deterrence.[4] Both parties submissions traversed a number of decisions of superior Courts which have considered the issue of previous conduct involving the respondents.[5]
[4] see paras 27-32 of the applicant’s submissions
[5] see also applicants submissions Annexure A
In relation to prior contraventions of s.38 of the BCII Act as the Full Court notes in Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65 at paragraph 76:
“Those contraventions (by reference to date, unlawful conduct and relevant statutory framework) will be relevant in re-exercise of the sentencing discretion.”
I accept the unlawful conduct was of limited duration (and there was no evidence of loss or damage) but did disrupt work at the Site.
I note that there have been previous findings against both the first and second respondents. I note the co-operation of the respondents and the agreed position of the parties. I accept that the respondents have co-operated and made admissions thereby relieving the applicant of the effort and expense of a hearing on liability.
Agreement on Penalty
It was the position of the parties before the Court that having regard to the above mentioned matters, the matters in the S.O.A.F and the conduct involved in the contraventions that:
“18.The parties agree on the following penalties as appropriate:
(a)$25,000 on the CFMEU;
(b)$5,000 on Berardi.”
The submissions filed on behalf of the parties addressed the principles which should be applied by the Court with respect to an agreed penalty.
The parties agreed not only on the quantum of the penalty they submitted the Court should impose but also the proposed orders as follows:
“1.A penalty of $5,000 be imposed on the first respondent for his contravention of s.38 of the Building and Construction Industry Improvement Act 2005 arising from his conduct on 8 October 2008 when he imposed a ban on the performance of building work at the B Central student apartments project at 28 Queens Avenue, Hawthorn.
2.A penalty of $25,000 be imposed on the second respondent for its contravention of s.38 of the Building and Construction Industry Improvement Act 2005 arising from its vicarious liability for the conduct of the first respondent when on 8 October 2008 he imposed a ban on the performance of building work at the B Central student apartments project art 28 Queens Avenue, Hawthorn.
3.The penalties be paid to the Consolidated Revenue Fund within 28 days of the date of this Order.
4.The proceedings be otherwise dismissed with no order as to costs.”
As the Full Court notes in Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65 at paragraph 92, declarations of contraventions are necessary to set out the foundation of the pecuniary penalty. However the parties were ad idem the above mentioned orders would evidence the basis for any pecuniary penalty imposed.
Conclusion
I note as referred to in submissions, that given the admission by the first respondent in these proceedings a fine previously suspended by order in Gregor v CFMEU & Anor [2009] FMCA 1266 will become payable.[6]
[6] see para 5 of applicant’s submissions
I also note the agreed penalties in this matter are 25% of the maximum.
I have had regard to a number of matters indicated in such cases as Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J, as far as they are relevant in these proceedings and the comments by Buchannan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [90].Having regard to the nature of the conduct and the other factors referred to in the parties submissions I am prepared to accept the agreed position of the parties on penalty. I accept as was said in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at paragraph [53] that:
“…
(iii) There is a public interest in promoting settlement of litigation…
(iv)The view of the regulator, as a specialist body, is relevant, but not determinative consideration on the question of penalty…
(vi)Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court’s view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.”
I am satisfied that the penalty is appropriate as it is neither manifestly inadequate nor manifestly excessive but within the permissible range.
I am satisfied having regard to the S.O.A.F, the conduct involved (including previous conduct) of both respondents, and all of the matters referred to above that the proposed orders are appropriate.
Therefore, as the Court:
a)is directed by the relevant authorities to consider what is appropriate in all the circumstances of this case;[7] and
[7] see Construction Forestry Mining & Energy Union v Coal & Allied Operations Pty Ltd (No.2) (1999) 94 IR 231
b)in its discretion in relation to penalty is not fettered by a checklist of mandatory criteria:[8] and
[8] see Australian Ophthalmic Supplies Pty Limited v McAlary-Smith (2008) 165 FCR 560
c)notes the parties have filed the S.O.A.F and agreed on penalties which are within the permissible range for the offence;[9] and
[9] see Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
d)is satisfied the agreed penalties are just and appropriate[10] and it is proper to make the orders sought;
[10] Ibid
there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 20 October 2010
ANNEXURE A
File number MLG85/2010
IN THE FEDERAL MAGISTRATES COURT
OF AUSTRALIA
FAIR WORK DIVISION
REGISTRY: MELBOURNE
MURRAY GREGOR
Applicant
DANNY BERARDI
First Respondent
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
STATEMENT OF AGREED FACTS
The Applicant is an ABC Inspector appointed under s. 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) and has standing under section 49(6) of the BCII to bring this proceeding before the Court.
The First Respondent (Berardi) is an organiser employed by the Second Respondent (CFMEU). For all relevant purposes set out in the Agreed Statement of Facts, Berardi was acting in his capacity as an organiser employed by the CFMEU.
The CFMEU is and was at all material times an “organisation” under s 4 of the Workplace Relations Act 1996 (Cth) as in force prior to 1 July 2009 and registered under the Fair Work (Registered Organisations) Act 2009 (Cth), and both a building association and industrial association under s 4(1) of the BCII Act.
B Central Constructions Pty Ltd (ACN 117 641 460) (“B Central”) was at all material times a constitutional corporation under s 4(1) of the BCII Act engaged to build a residential development of student apartments (“the Building Works”) at property situated at 28 Queens Avenue, Hawthorn, in Victoria (“the Site”).
The OHS Representatives
On 6 October 2008, B Central terminated the employment of Michael Metherell (Metherell), the Site peggy and employee occupational health and safety representative (OHS representative). B Central took this action because it regarded Metherell’s performance as unsatisfactory despite previous oral and written warnings to him during the previous 5 months about his failure to attend to basic hygiene and site cleaning matters.
On 7 October 2008, Barry Smith (Smith) commenced work at the Site as an employee of B Central with the duties of the Site peggy. On 8 October 2008, Smith was elected Site OHS Representative.
THE EVENTS OF 7 OCTOBER 2008
The employees
On 7 October 2008, the Building Works were being carried out on the Site by employees of subcontractors as follows:
a) Mount View Constructions Pty Ltd – two carpenters and an apprentice,
b) Gormar International Pty Ltd – one tiler,
c) M & A Polimeni Plumbing Pty Ltd – one plumber,
d) B Way Constructions Pty Ltd – six employees (various trades),
e) Faris Matti Pty Ltd – three plasterers,
(collectively, the Relevant Employees).
The Relevant Employees were performing, and were required to perform, work on the Site in accordance with the terms and conditions prescribed in an industrial instrument that applied to their employment, being the National Building and Construction Industry Award 2000, which applied by operation of the National Building and Construction Industry Common Rule Declaration 2005.
The Stoppage
On 7 October 2008, at approximately 10 am, Berardi entered the Site and held a meeting with the Relevant Employees.
In that meeting, Berardi was critical of the way that B Central had treated Metherell, including B Central’s support of Metherell in carrying out his duties as peggy and OHS representative. Berardi said that the Relevant Employees needed to take action. He told them to stop work for a day or two until the issue was sorted out. He said that workers could relocate to another work site but if they could not be relocated, they were to go home. The effect of Berardi’s conduct in this meeting was to direct the Relevant Employees to stop work on the Site for a day or two until the Metherell issue was sorted out.
Shortly after 10 am following Berardi’s meeting with the Relevant Employees, the Relevant Employees failed or refused to perform any building work on the Site for the balance of the working day (the Stoppage).
By reason of paragraphs 10 and 11, Berardi engaged in building industrial action under s 36 of the BCII Act in that by his direction to the Relevant Employees to stop work on the Site, he banned work on the Site.
Berardi was motivated by the following purposes under s 36 of the BCII Act:
a) supporting or advancing a claim against B Central to keep Metherell employed by it as the peggy cum OHS representative on the Site,
b) advancing industrial objectives of the CFMEU;
c) disrupting the performance of work on the Site.
The building industrial action engaged in by Berardi was not “excluded action” under s 36 of the BCII Act.
Further, Berardi’s action was “constitutionally-connected action” under s 36 of the BCII Act because:
a) by operation of section 69 of the BCII Act and paragraph 2 herein, his action was action taken by the CFMEU;
b) his action adversely affected B Central in its capacity as head contractor on the Site, in that the Stoppage transpired and B Central still had to incur fixed staff and administrative costs for that.
Accordingly, by reason of the above matters, Berardi engaged in “unlawful industrial action” within the meaning of s 37 of the BCII Act and therefore contravened s 38 of the BCII Act.
Because of section 69 of the BCII Act and paragraph 2 herein, Berardi’s conduct is taken to be the conduct of the CFMEU. Therefore, the CFMEU also contravened s 38 of the BCII Act.
The parties agree on the following penalties as appropriate:
a) $25,000 on the CFMEU;
b) $5,000 on Berardi.
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