FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEYMAN v CFMEU & ORS | [2011] FMCA 145 |
| INDUSTRIAL LAW – Penalty hearing – unlawful building industrial action – admitted contraventions – considerations on penalty – agreed penalty. |
| Building and Construction Industry Improvement Act 2005 (Cth) ss.37, 38, 69 |
| Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 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 A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285 Wells v Locarno Management Pty Ltd [2008] FCA 1034 Hills v Sutton (2007) 169 IR 327 Minister for Industry Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCA FC 72 |
| Applicant: | SHAD HEYMAN |
| First Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Second Respondent: | NOEL WASHINGTON |
| Third Respondent: | MATTHEW HUDSON |
| Fourth Respondent: | ELIAS SPERNOVASILIS |
| File Number: | MLG 465 of 2010 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 8 March 2011 |
| Date of Last Submission: | 8 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.Dalton |
| Solicitors for the Applicant: | Trindade Farr & Pill Lawyers |
| Counsel for the First, Second, Third and Fourth Respondents: | Ms E. Walters |
| Solicitors for the First, Second, Third and Fourth Respondents: | Construction, Forestry, Mining and Energy Union |
ORDERS
A penalty of $6,000.00 be imposed on the second respondent for his contravention of s.38 of the Building and Construction Industry Improvement Act 2005 constituted by his conduct on 21 May 2008 when he banned work on a tower crane at the Royal Children’s Hospital site at Parkville, Victoria.
A penalty of $5,000.00 be imposed on the third respondent for his contravention of s.38 of the Building and Construction Industry Improvement Act 2005 constituted by his conduct on 21 May 2008 when he banned work on a tower crane at the Royal Children’s Hospital site at Parkville, Victoria.
A penalty of $30,000.00 be imposed on the first respondent for its contravention of s.38 of the Building and Construction Industry Improvement Act 2005 arising from its vicarious liability for the contravening conduct of its officials, the second and third respondents.
The penalties be paid to the Consolidated Revenue Fund within
28 days of the date of this Order.
The proceedings otherwise be dismissed with no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 465 of 2010
| SHAD HEYMAN |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
First Respondent
| NOEL WASHINGTON |
Second Respondent
| MATTHEW HUDSON |
Third Respondent
| ELIAS SPERNOVASILIS |
Fourth Respondent
REASONS FOR JUDGMENT
Shad Heyman (“the applicant”) is an inspector appointed pursuant to s.57 of the Building and Construction Industry Improvement Act 2005 (“the BCII Act”). On 1 April 2010 the applicant commenced these proceedings against the Construction Forestry, Mining and Energy Union…
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- AGLC
- Heyman v CFMEU [2011] FMCA 145
- Case
- [2011] FMCA 145
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the defendants had contravened section 38 of the Act and, if so, what penalties should be imposed. The court had to consider the nature and extent of the defendants' actions, the statutory provisions governing industrial activities in the building and construction industry, and the appropriate penalties for such contraventions. The plaintiffs argued that the defendants' actions were unlawful as they constituted unprotected industrial action, while the defendants claimed the actions were protected by the Act.
In its judgment, the court found that the defendants had indeed contravened section 38 of the Act. The court held that the banning of work on the tower crane was not protected industrial action under the provisions of the Act. The court also determined that the first respondent, the CFMEU, was vicariously liable for the actions of its officials, the second and third respondents. The penalties were assessed based on the seriousness of the contraventions and the need to deter similar conduct in the future. The court imposed penalties of $6,000 on the second respondent, $5,000 on the third respondent, and $30,000 on the first respondent. The court further ordered that these penalties be paid to the Consolidated Revenue Fund within 28 days of the date of the order and dismissed the proceedings with no order as to costs.
Orders
Orders of the court
1.
A penalty of $6,000.00 be imposed on the second respondent for his contravention of s.38 of the Building and Construction Industry Improvement Act 2005 constituted by his conduct on 21 May 2008 when he banned work on a tower crane at the Royal Children’s Hospital site at Parkville, Victoria.
2.
A penalty of $5,000.00 be imposed on the third respondent for his contravention of s.38 of the Building and Construction Industry Improvement Act 2005 constituted by his conduct on 21 May 2008 when he banned work on a tower crane at the Royal Children’s Hospital site at Parkville, Victoria.
3.
A penalty of $30,000.00 be imposed on the first respondent for its contravention of s.38 of the Building and Construction Industry Improvement Act 2005 arising from its vicarious liability for the contravening conduct of its officials, the second and third respondents.
4.
The penalties be paid to the Consolidated Revenue Fund within
28 days of the date of this Order.
5.
The proceedings otherwise be dismissed with no order 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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