Gregor v CFMEU

Case [2009] FMCA 1266


FEDERAL MAGISTRATES COURT OF AUSTRALIA

GREGOR v CFMEU & ANOR [2009] FMCA 1266
INDUSTRIAL LAW – Penalty hearing – unlawful building industrial action – admitted contraventions – considerations on penalty – agreed penalty.
Building and Construction Industry Improvement Act 2005 (Cth)
Minister for Industry, Tourism & Resources v Mobil Oil [2004] FCA FC 72
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426
Leighton Contractors v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375
Temple v Powell (2008) 169 FCR 169
Stuart v L.U. Simon Builders Pty Ltd [2008] FCA 107
Wells v Locarno Management Pty Ltd [2008] FCA 1034
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
Applicant: MURRAY GREGOR
First Respondent: CONSTRUCTION FORESTRY, MINING AND ENERGY UNION
Second Respondent: DANIEL BERARDI
File Number: MLG 582 of 2009
Judgment of: O'Sullivan FM
Hearing date: 16 December 2009
Date of Last Submission: 16 December 2009
Delivered at: Melbourne
Delivered on: 16 December 2009

REPRESENTATION

Counsel for the Applicant: Mr M. Biviano
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

ORDERS

  1. The first respondent pay to the Consolidated Revenue Fund by way of penalty for a contravention on 19 July 2007 of s.38 Building and Construction Industry Improvement Act 2005 (Cth) the sum of $7,500 within 30 days.

  2. The second respondent pay to the Consolidated Revenue Fund by way of penalty for a contravention on 19 July 2007 of s.38 Building and Construction Industry Improvement Act 2005 (Cth) the sum of $1,000 within 30 days of the second respondent being adjudged to have breached any provision of the Building and Construction Industry Improvement Act 2005 (Cth), provided that the contravention of such legislation was committed within 2 years of the date of this order.

  3. The proceedings otherwise dismissed.

  4. There be no orders as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 582 of 2009

MURRAY GREGOR

Applicant

And

CONSTRUCTION FORESTRY, MINING AND ENERGY UNION

First Respondent

And

DANIEL BERARDI

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

  1. Murray Gregor (“the applicant”) is an inspector appointed pursuant to s.57 of the Building and Construction Industry Improvement Act
    2005
    (“the BCII Act”). On 20 May 2009 the applicant commenced proceedings against the Construction Forestry, Mining and Energy Union (“the first respondent”) and Daniel Berardi (“the second respondent”).

  2. The applicant alleged conduct in breach of the BCII Act by the respondents at a building site in Victoria in July 2007.

The application

  1. The application as filed on 20 May 2009 sought the following orders:

    “1.A declaration that the First and Second Respondents contravened s.38 of the Building and Construction Industry Improvement Act 2005 (Cth) by engaging…

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Details
AGLC
Gregor v CFMEU [2009] FMCA 1266
Case
[2009] FMCA 1266
Decision Date

CaseChat Overview and Summary

Gregor, a party in the case, brought an action against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and its members. The dispute involved allegations of contraventions of the Building and Construction Industry Improvement Act 2005 (Cth) concerning the activities of the CFMEU and its members. The Federal Court was the judicial body tasked with resolving this matter.

The primary legal issue before the court was whether the CFMEU and its members had indeed contravened section 38 of the Act, which pertains to specified unlawful activities in the building and construction industry. The court had to determine whether the actions of the CFMEU and its members warranted the imposition of financial penalties under the legislation.

In its decision, the court found that there were indeed contraventions of the Act by the CFMEU and its members on the specified date. Consequently, the court ordered the first respondent, the CFMEU, to pay a penalty of $7,500, and the second respondent to pay a penalty of $1,000, contingent on any further breaches of the Act within two years of the order. The court dismissed the proceedings in all other respects and made no orders regarding costs.

The court's order was specific and directed the first respondent to pay the penalty within 30 days from the date of the judgment, while the second respondent's penalty was to be paid under the condition of any further breaches occurring within the stipulated timeframe. This ruling underscores the court's role in enforcing compliance with industry regulations and ensuring that penalties are imposed for non-compliance.

Orders

Orders of the court

1.

The first respondent pay to the Consolidated Revenue Fund by way of penalty for a contravention on 19 July 2007 of s.38 Building and Construction Industry Improvement Act 2005 (Cth) the sum of $7,500 within 30 days.

2.

The second respondent pay to the Consolidated Revenue Fund by way of penalty for a contravention on 19 July 2007 of s.38 Building and Construction Industry Improvement Act 2005 (Cth) the sum of $1,000 within 30 days of the second respondent being adjudged to have breached any provision of the Building and Construction Industry Improvement Act 2005 (Cth), provided that the contravention of such legislation was committed within 2 years of the date of this order.

3.

The proceedings otherwise dismissed.

4.

There be no orders as to costs.

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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