Gregor v CFMEU
[2009] FMCA 1266
•16 December 2009
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
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.
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.
The proceedings otherwise dismissed.
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)
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”).The applicant alleged conduct in breach of the BCII Act by the respondents at a building site in Victoria in July 2007.
The application
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 in or being involved in unlawful industrial action at the Bialik College site at 431 Auburn Road, Hawthorn, Victoria from about 12 noon on 19 July 2007 for the remainder of the day.
2.The imposition upon the First Respondent of a pecuniary penalty for each contravention of s.38 of the BCII Act.
3.The imposition upon the Second Respondent of a pecuniary penalty for each contravention of s.38 of the BCII Act.
4.An order that any penalty or penalties be payable into the Consolidated Revenue Fund.
5. Any order for costs.
6. Such further or other orders as to the Court may seem just.”
The matter was subject to an initial directions hearing on 19 June
2009 and referred to mediation. On 8 September 2009, after the parties had attended mediation, the following orders were made:
“1.The parties file a statement of agreed facts by 28 September 2009.
2.The applicant file and serve submission by 16 October 2009.
3.The respondent file and serve submissions by 13 November 2009.
4.The applicant file and serve any submissions in reply by
27 November 2009.
5.The proceeding be listed for a penalty hearing in the Federal Magistrates Court at Melbourne at 10:00am on
16 December 2009.
6.There be general liberty to apply for both parties.”
On 9 November 2009, and following consent orders extending time for compliance with the above orders, the parties filed a Statement of Agreed Facts which is Annexure A to these reasons.
Both parties filed submissions as contemplated by the above orders. The applicant filed submissions on 11 November 2009 and the respondents on 11 December 2009.
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, the applicant was represented by Mr Biviano of Counsel, and the respondents by Ms Walters.
The applicant relied on the S.O.A.F and the submissions referred to above as did the respondents. The applicant also tendered a table (marked Exhibit A1) setting out the results of other penalty proceedings under the BCII Act to which I will return.
Background
The proceedings are brought in respect of events that occurred back in 2007. The following summary, which is taken from the S.O.A.F, is necessary to understand the position of the parties on the appropriate penalties.
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 second respondent at all relevant times was acting in his capacity as an officer of the first respondent.
In 2007 Masbuild (Aust) Pty Ltd was the construction manager responsible for a project at Bialik College in Hawthorn, Victoria (“the Site”).
Masbuild engaged Greensborough Steel Fabrications Pty Ltd, Delta Group Pty Ltd and Merrynglen Pty Ltd (t/a High Cut Roofing) to carry out work at the Site and they each engaged employees eligible to be members of the first respondent[1].
[1] see paras..4 – 7 S.O.A.F
On or about 19 July 2007 the second respondent attended a meeting with Masbuild about workplace agreements at the Site. After this meetings were held by the second respondent and employees of Delta Group, Greensborough Steel and High Cut Roofing[2] at the Site.
[2] see paras.9 – 15 S.O.A.F
At that meeting the second respondent told those attending that the Site was being closed down and encouraged and directed them not to perform work and to leave the Site. Following that meeting these employees stopped work and left the Site.[3]
[3] see paras.16 -19 S.O.A.F
Contraventions
As noted above the parties filed the S.O.A.F which relevantly for present purposes set out that on 19 July 2007:
“14.Berardi… arranged for the workers on the site to stop work and attend a meeting in a room at the site at approximately midday in the presence of both Liu and Gell (the CFMEU stop work meeting)
15. The CFMEU stop work meeting was attended by:-
a)Three employees of Delta Group known as Kane Waldie, Travis Pitt and Peter Calvin, each of these persons being either members of the CFMEU or eligible to be members of the CFMEU (the Delta Group employees);
b)Three employees of Greensborough Steel known as Pedro Bustos, Mark Nicholls and Dwayne, each of these persons being either members of the CFMEU or eligible to be members of the CFMEU (the Greensborough Steel employees); and
c)Four employees of Highcut Roofing known as Todd Carter, Justin Grainger, Gary Williams and Ray Walker, each of these persons being either members of the CFMEU or eligible to be members of the CFMEU, or alternatively being either members of the Communications Electrical Plumbing Union (the CEPU) or eligible to be members of the CEPU (the Highcut Roofing employees).
The Berardi direction and the CFMEU ban
16.During the CFMEU stop work meeting, Berardi told the workers that the Site was being closed down and he encouraged and directed the Delta Group employees, the Greensborough Steel employees and the Highcut Roofing employees thereafter:-
a) not to perform any further work at the site; and
b) to leave the site immediately (the Berardi direction).
17.At all material times the Berardi direction was not retracted by Berardi or any other person.
18. Masbuild was not informed or given notice :-
a) of the Berardi direction; or
b)that the Delta Group employees, the Greensborough Steel employees and Highcut Roofing Employees were stopping work and leaving the site immediately.
19.By reason of the Berardi direction, after the conclusion of the CFMEU stop work meeting:
a)the Delta Group employees did not perform any work at the site from 12pm on 19 July 2007, or on 20 July 2007 and 21 July 2007 and immediately left the site;
b)the Greensborough Steel employees did not perform any work at the site from 12pm on 19 July 2007 for the remainder of that day; and
c)the Highcut Roofing employees did not perform any work at the site from 12pm on 19 July 2007 for the remainder of that day (“the CFMEU Ban”).
20.The CFMEU stop work meeting and the CFMEU ban disrupted the performance of work at the site.”
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:
“21. The actions of Berardi and the CFMEU, in respect of:
a. the CFMEU stop work meeting; and/or
b. the CFMEU ban
constituted building industrial action within the meaning of that term in s.36 of the BCII Act (the building industrial action).
22. By reason of the building industrial action being:
a. industrially-motivated action;
b. constitutionally-connected action; and
c. action that was not excluded action –
the building industrial action constituted unlawful industrial action within the meaning of that term in s.37 of the BCII Act.
23.By reason of each of the acts of the building industrial action being unlawful industrial action and the operation of s. 69 BCII Act:
a.Berardi has committed a single contravention of s.38 of the BCII Act; and
b.the CFMEU has committed a single contravention of 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.”
In the application it was alleged that the respondents contravened s.38 of the BCII Act by reason of the involvement in the following building industrial action:
a)a ban, limitation and restriction on the performance of building work adopted in connection with an industrial dispute: s.36(1)(c) BCII Act.
b)a failure and refusal to attend for building work or a failure to perform any work at all after attending for work: s.36(1)(d) BCII Act; and
Further s.69 of the BCII Act provides:
(1)For the purposes of this Act, the following conduct in relation to abuilding 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[4].
[4] see para.13 of applicant’s submissions
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.[5] In particular the applicant’s submissions noted:
[5] see e.g. paras.15 – 18 of applicant submissions and paras.7-17 of respondent’s submissions
“15.In Leighton Contractors v Construction, Forestry, Mining and Energy Union, Le Miere J made the following comments when dealing with contraventions of the BCII Act:
[58] Contraventions of the Act, whether by individuals or organisations, are always to be treated as a serious matter. The main object of the Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.
16.In Stuart-Mahoney v Construction, Mining and Energy Union Tracey J observed as follows:
…in light of the statutory purposes of the BCII Act, the need for general deterrence for contraventions of the BCII Act is particularly strong. Penalties must be imposed at a meaningful level of they are to serve as a general deterrent to others who may be disposed to engage in proscribed conduct.
17.Any penalty must nevertheless be proportionate to the conduct of the individual or organisation in contravention.”
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 has already been set out at paragraph 17 and 18 above. I accept the unlawful conduct whilst of limited duration[6] (and there was no evidence of loss or damage) did disrupt work at the Site.
[6] see para.18 of respondents submissions
The respondents submissions traversed a number of decisions of superior Courts which have considered the issue of previous conduct involving respondents such as the first respondent in the context of factors such as the need for specific deterrence.[7]
[7] see para.19-23 of respondents submissions
In relation to Exhibit A1 the decision of the Full Federal Court in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 is instructive. At [12] Gray J deprecated the use of “comparator” cases. His Honour said:
“This was a fundamentally wrong approach. 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. . . “
At [13] his Honour said:
“Penalty decisions in other cases can be of value in demonstrating that there is a range of penalties generally considered appropriate to a particular type of case. The individual circumstances of the case at hand must then be examined, in order to determine at what point in the appropriate range the penalty should be set. This does not involve a comparison with the facts of other cases.”
In any event, and as the parties told the Court, that exhibit was tendered only for the purposes of assisting the Court on whether the agreed penalties were within the permissible range.
I note that whilst there has been previous findings against the first respondent there has been no such finding against the second respondent. I also note the respondents submissions[8] regarding the deterrent value of these proceedings.
[8] See para.26 -27 of respondents submissions
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. I note that the co-operation of the respondents and the agreed position of the parties evidences an understanding and acknowledgment of the unlawful conduct.[9]
[9] see para.25 of respondents submissions
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:
“20.In all the circumstances, it is the joint submissions of the Applicant, First Respondent and the Second Respondent that the appropriate quantum of penalty for this contravention is: -
a. $7,500 (6.81% of the maximum) for the First Respondent;
b. $1,000 (4.54% of the maximum) for the Second Respondent which shall be suspended for a period of 24 months and is payable in the event that a Court finds that the Second Respondent is liable for any breach of the BCII Act in the 24 months commencing from the date of the Court’s order as to penalty.”
The submissions filed on behalf of the parties helpfully summarised the principles which should be applied by the Court with respect to an agreed penalty as follows:
“21. The principles with respect to agreed penalty are that: -
a. In cases where parties have agreed on proposed penalties, the Court is not bound to impose those penalties but will do so if it is satisfied that the proposed penalties fall within “the permissible range”.
b.In this respect, the “permissible range” of penalties refers to a range “which would be permitted by the Court, that is, a range within which the penalty is neither manifestly inadequate nor manifestly excessive”.
c.There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed.
d.The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty.
e.In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so.
f.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.[10]”
[10] see also para.10-13 and 28 of respondent’s submissions
As is clear from the above the parties had agreed not only on the quantum on the penalty they submitted the Court should impose but also that at least one of those penalties should be suspended.[11] The Court was referred to a number of decisions of the Federal Court where suspended penalties had been considered appropriate[12]. In relation to the second respondent I am satisfied an order in those terms is appropriate.
[11] see para.20(b) of S.O.A.F
[12] see Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 at [26] per Tracey J and Stuart v L.U. Simon Builders Pty Ltd [2009] FCA 107 at [12] per Marshall J
Conclusion
I am prepared to accept the agreed position of the parties on penalty. I am satisfied that the penalty is appropriate as it is neither manifestly inadequate nor manifestly excessive but within the permissible range. Moreover, and having regard to the S.O.A.F, the conduct involved (including any previous conduct) of both respondents, and all of the matters referred to above the 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;[13] and
[13] 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:[14] and
[14] 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 each offence;[15] and
[15] see Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
d)is satisfied the agreed penalties are just and appropriate[16] and it is proper to make the declarations and orders sought including suspending the penalty in relation to the second respondent;
[16] Ibid
there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Associate: Haylee Hobbs
Date: 16 December 2009
ANNEXURE A
| IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
FILE NO: MLG 582 /2009
MURRAY GREGOR
Applicant
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent
DANIEL BERARDI
Second Respondent
STATEMENT OF AGREED FACTS
Parties
The Applicant (Gregor) is and was at all material times:
a.an Australian Building and Construction Inspector appointed pursuant to s.57 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act); and
b.a person eligible to bring proceedings for a contravention of a civil penalty provision of the BCII Act pursuant to s.49(6) of that Act; and
c.is entitled to bring these proceedings seeking declaratory relief and a penalty in the Federal Magistrates’ Court for a contravention of s.38 of the BCII Act pursuant to s.49(1) of that Act.
The First Respondent (the CFMEU) is and was at all material times:
a.an organisation pursuant to the provisions of Schedule 1 of the Workplace Relations Act 1996 (Cth) (the WR Act);
b.by reason of its being so registered, a body corporate capable of being sued in its own name pursuant to the WR Act;
c.a person by reason of s.48(1) of the BCII Act;
d.a building industry participant for the purposes of s.4 of the BCII Act; and
e.a building association and an industrial association within the meaning of those terms in s.4 of the BCII Act.
The Second Respondent (Berardi) is and was at all material times:
a.a member of the CFMEU;
b.an employee of the CFMEU acting in that capacity; and
c.an officer of the CFMEU acting within that capacity, namely, being a union official of the CFMEU;
d.a building industry participant for the purposes of s.4 of the BCII Act.
Masbuild and its subcontractors
Masbuild (Aust) Pty Ltd (ACN 117 430 261) (Masbuild) at all material times:
a.was construction manager for the demolition and renovation project at Bialik College, 431 Auburn Road Hawthorn in Victoria (the site);
b.was a building employer, a building industry and a constitutional corporation within the meaning of those terms set out in section 4 of the BCII Act; and
c.did not have a building agreement, within the meaning of that term in s.4 of the BCII Act, made pursuant to Part 8 of the WR Act or a pre-reform certified agreement made under the WR Act with any industrial organisation in respect of any work to be performed at the site (a union building agreement).
Greensborough Steel Fabrications Pty Ltd (ACN 007 075 701) (Greensborough Steel) at all material times:
a.had been retained by Masbuild to perform structural steel work at the site;
b.was a building employer, a building industry participant, a building contractor and a constitutional corporation within the meaning of those terms as set out in section 4 of the BCII Act;
c.were bound by the following industrial instruments regarding the performance of the building work at the site:-
(i)the National Building and Construction Industry Award 2000 (NBCIA);
(ii)the National Building and Construction Industry Victorian Common Rule Declaration 2005 (which incorporates the terms (with minor exceptions) of the National Building and Construction Industry Award 2000) (common rule declaration); and
(iii)the Greensborough Steel Fabrications Certified Construction Agreement 2003/2006.
Delta Group Pty Ltd (Delta Group) (ACN 129 393 924) at all material times:
a.had been retained by Masbuild to perform demolition work at the site;
b.was a building employer, a building industry participant, a building contractor and a constitutional corporation within the meaning of those terms as set out in section 4 of the BCII Act;
c.were bound by the following industrial instruments regarding the performance of the building work at the site:-
(i)the NBCIA;
(ii)the common rule declaration; and
(iii)the Delta Group Industries Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005.
Merrynglen Pty Ltd (ACN 057 041 577) trading as High Cut Roofing (High Cut Roofing) at all material times:
a.had been retained by Masbuild to perform roof work at the site;
b.was a building employer, a building industry participant, a building contractor and a constitutional corporation within the meaning of those terms as set out in section 4 of the BCII Act;
c.were bound by the following industrial instruments regarding the performance of the building work at the site:-
(i)the NBCIA;
(ii)the common rule declaration; and
(iii)the Plumbing Trades (Southern States) Construction Award 1999 [AW792355]; and
(iv)the Merryn Glen Pty Ltd and CEPU Plumbing Division Certified Agreement VIC 2005-2008 (PR965405).
The building work
In or about June 2007, Masbuild commenced work as construction manager on the site and at all material times, the building and construction work performed, or to be performed, at the site by:
a. Masbuild;
b. Greensborough Steel;
c. Delta Group; and
d. High Cut Roofing.
constituted building work within the meaning of that term in s.5 of the BCII Act (the building work).
On the morning of 19 July 2007, both Tony Masalkovski (“Masalkovski”), director of Masbuild and Antonio Dubocanin (“Dubocanin”), foreman for Masbuild were working on the site.
While working on the site on 19 July 2007 at around 11.00 am, Berardi, attended on the site without prior notification. Berardi approached Dubocanin and Dubocanin asked him, what were his intentions on site. Berardi gave him his card and said that he had come for a look around the site.
A short time later Berardi approached Masalkovski and a conversation talk place in the presence of Dubocanin which commenced in the lunch shed and subsequently moved to another room on site, when some of the workers wanted to use the lunch room.
During the discussion:-
a.Berardi questioned Masalkovski and Dubocanin about the size and nature of the project;
b.Berardi said that Masbuild should have labourers on Site;
c.Berardi questioned the Masbuild representatives about the project and whether they were a party to the CFMEU Building and Construction Industry Collective Bargaining Agreement to which the Masbuild representatives stated they were not;
d.Berardi questioned the Masbuild representatives why Masbuild was not a party to the CFMEU Building and Construction Industry Collective Bargaining Agreement;
e.Masalkovski explained that as Masbuild targeting small construction jobs under $5 million and was subcontracting out its building work, it did not believe that it needed to be a party to the CFMEU Building and Construction Industry Collective Bargaining Agreement;
f.The conversation became loud and robust about Masbuild’s position that it was not a party to the CFMEU Building and Construction Industry Collective Bargaining Agreement;
Subsequently Adrian Gell a union organiser for the plumbing division of the CEPU (Gell) and Reno Lia of the electrical division of the CEPU (Lia) attended on site and joined the conversation between Berardi and the Masbuild Representatives part way through the conversation, during which:-
a.Gell requested that a second access tower be installed for the roofers to gain access to the roof – which Masalkovski refused to provide because MBAV had confirmed that only one tower was required for the job;
b.Berardi also requested that a shop steward and OHS officer be employed on site, which Masalkovski rejected due to the size of the job.
Berardi walked away from the meeting with both Liu and Gell. Berardi arranged for the workers on the site to stop work and attend a meeting in a room at the site at approximately midday in the presence of both Liu and Gell (the CFMEU stop work meeting)
The CFMEU stop work meeting was attended by:-
a.Three employees of Delta Group known as Kane Waldie, Travis Pitt and Peter Calvin, each of these persons being either members of the CFMEU or eligible to be members of the CFMEU (the Delta Group employees);
b.Three employees of Greensborough Steel known as Pedro Bustos, Mark Nicholls and Dwayne, each of these persons being either members of the CFMEU or eligible to be members of the CFMEU (the Greensborough Steel employees); and
c.Four employees of Highcut Roofing known as Todd Carter, Justin Grainger, Gary Williams and Ray Walker, each of these persons being either members of the CFMEU or eligible to be members of the CFMEU, or alternatively being either members of the Communications Electrical Plumbing Union (the CEPU) or eligible to be members of the CEPU (the Highcut Roofing employees).
The Berardi direction and the CFMEU ban
During the CFMEU stop work meeting, Berardi told the workers that the Site was being closed down and he encouraged and directed the Delta Group employees, the Greensborough Steel employees and the Highcut Roofing employees thereafter:-
a.not to perform any further work at the site; and
b.to leave the site immediately (the Berardi direction).
At all material times the Berardi direction was not retracted by Berardi or any other person.
Masbuild was not informed or given notice :-
a.of the Berardi direction; or
b.that the Delta Group employees, the Greensborough Steel employees and Highcut Roofing Employees were stopping work and leaving the site immediately.
By reason of the Berardi direction, after the conclusion of the CFMEU stop work meeting:
a.the Delta Group employees did not perform any work at the site from 12pm on 19 July 2007, or on 20 July 2007 and 21 July 2007 and immediately left the site;
b.the Greensborough Steel employees did not perform any work at the site from 12pm on 19 July 2007 for the remainder of that day; and
c.the Highcut Roofing employees did not perform any work at the site from 12pm on 19 July 2007 for the remainder of that day (“the CFMEU Ban”).
The CFMEU stop work meeting and the CFMEU ban disrupted the performance of work at the site.
The actions of Berardi and the CFMEU, in respect of:
a.the CFMEU stop work meeting; and/or
b.the CFMEU ban
constituted building industrial action within the meaning of that term in s.36 of the BCII Act (the building industrial action).
The unlawful building industrial action
By reason of the building industrial action being:
a.industrially-motivated action;
b.constitutionally-connected action; and
c.action that was not excluded action –
the building industrial action constituted unlawful industrial action within the meaning of that term in s.37 of the BCII Act.
By reason of each of the acts of the building industrial action being unlawful industrial action and the operation of s. 69 BCII Act:
a.Berardi has committed a single contravention of s.38 of the BCII Act; and
b.the CFMEU has committed a single contravention of s.38 of the BCII Act.
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