Stuart v Construction, Forestry, Mining and Energy Union

Case [2009] FCA 1119

FEDERAL COURT OF AUSTRALIA

Stuart v Construction, Forestry, Mining and Energy Union [2009] FCA 1119

INDUSTRIAL LAW – building and construction – industrial action – penalty – two admitted contraventions – organising stop-work meeting – refusing to induct workers, demanding enterprise bargaining agreement and organising stop-work meeting with intent to apply undue pressure – appropriate penalty – penalty sought only against union and only on basis of vicarious liability for shop steward’s actions – whether actual undue pressure – whether shop steward acted wilfully – whether evidence of loss and damage inflicted – purpose of legislation – relevance of deterrence

WORDS AND PHRASES – undue pressure

Building and Construction Industry Improvement Act 2005 (Cth), ss 3, 4, 5, 36, 37, 38, 43, 44, 45, 49, 57, 69
Workplace Relations Act 1996 (Cth), s 507, Pt 8

Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 applied

KAREN STUART v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and CHARLIE CORBETT

VID 111 of 2008

GRAY J
2 OCTOBER 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 111 of 2008

GENERAL DIVISION
BETWEEN:

KAREN STUART
Applicant
AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

CHARLIE CORBETT
Second Respondent

JUDGE:

GRAY J

DATE OF ORDER:

2 OCTOBER 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Within 30 days of this day, the first respondent pay to the Commonwealth of Australia penalties totalling $5,000 in respect of:

(a) the admitted contravention of s 38 of the Building and Construction Industry
  Improvement Act 2005 (Cth) constituted by the second respondent organising
a stop-work meeting of employees working on the site of the construction of a              police and law courts complex at 141 Princes Highway, Morwell in Victoria                on 3 October 2006; and


  

(b) the admitted contravention of s 44(1) of the Building and Construction
  Industry Improvement Act 2005 (Cth) constituted by the second respondent:

(i)        refusing to induct to the site of the construction of a police and law
courts complex at 141 Princes Highway, Morwell, Victoria, two
employees of Celltech Australia Pty Ltd on 19 September 2006,
contrary to the second respondent’s obligations to his employer,
Hooker Cockram Projects Ltd;


  
  
  
  

(ii)       stating that the work that the two employees of Celltech Australia Pty
Ltd propose to do at that site was CFMEU work, not AMWU work,
and that those employees needed an EBA and all appropriate
paperwork to work at that site; and


  
  
  

(iii)      organising a stop-work meeting of employees at that site on 3 October   2006

with admitted intent to apply undue pressure to Celltech Australia Pty Ltd to agree to make a building agreement under Pt 8 of the Workplace Relations Act   1996 (Cth).

2.        Otherwise, the application be dismissed.

3.        By consent, there be no order as to the costs of the proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


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Details
AGLC
Stuart v Construction, Forestry, Mining and Energy Union [2009] FCA 1119
Case
[2009] FCA 1119
Decision Date

CaseChat Overview and Summary

Stuart, an Australian Building and Construction Inspector, brought a civil penalty application against the Construction, Forestry, Mining and Energy Union (CFMEU) and one of its shop stewards, alleging breaches of the Building and Construction Industry Improvement Act 2005 (Cth). The case pertains to incidents at a building site in Morwell in 2006 where the shop steward, employed by Hooker Cockram Projects Ltd, refused to induct employees of a subcontractor, Celltech Australia Pty Ltd, onto the site and asserted that they needed an enterprise bargaining agreement (EBA) to work there. The shop steward also organised a stop-work meeting with the intent to pressure Celltech to agree to a building agreement. The CFMEU admitted to these contraventions.

The primary legal issue was whether the shop steward's actions constituted breaches of the Act, specifically sections 38 and 44(1). Section 38 prohibits organising stop-work meetings with intent to unduly influence a building agreement, while section 44(1) mandates the induction of workers onto a building site. The court had to determine if the shop steward's conduct fell within the scope of these provisions and if so, whether the penalties sought by Stuart were appropriate.

The court found that the shop steward's refusal to induct the Celltech employees and his insistence that they needed an EBA constituted a contravention of section 44(1). His organisation of a stop-work meeting with the intent to pressure Celltech into a building agreement contravened section 38. The court considered the seriousness of the breaches and the need for deterrence, and thus, ordered the CFMEU to pay penalties totalling $5,000. The court concluded that the penalties were appropriate given the admitted contraventions and the need to uphold the integrity of the building and construction industry.

In light of the findings, the court ordered the CFMEU to pay the penalties within 30 days or the application would be dismissed. The order specified the penalties related to the admitted contraventions of sections 38 and 44(1) of the Act. The parties consented to no order as to the costs of the proceeding.

Orders

Orders of the court

1. Within 30 days of this day, the first respondent pay to the Commonwealth of Australia penalties totalling $5,000 in respect of:

(a) the admitted contravention of s 38 of the Building and Construction Industry

Improvement Act 2005 (Cth) constituted by the second respondent organising

a stop-work meeting of employees working on the site of the construction of a police and law courts complex at 141 Princes Highway, Morwell in Victoria on 3 October 2006; and

(b) the admitted contravention of s 44(1) of the Building and Construction

Industry Improvement Act 2005 (Cth) constituted by the second respondent:

(i) refusing to induct to the site of the construction of a police and law

courts complex at 141 Princes Highway, Morwell, Victoria, two

employees of Celltech Australia Pty Ltd on 19 September 2006,

contrary to the second respondent’s obligations to his employer,

Hooker Cockram Projects Ltd;

(ii) stating that the work that the two employees of Celltech Australia Pty

Ltd propose to do at that site was CFMEU work, not AMWU work,

and that those employees needed an EBA and all appropriate

paperwork to work at that site; and

(iii) organising a stop-work meeting of employees at that site on 3 October 2006

with admitted intent to apply undue pressure to Celltech Australia Pty Ltd to agree to make a building agreement under Pt 8 of the Workplace Relations Act 1996 (Cth).

2. Otherwise, the application be dismissed.

3. By consent, there be no order as to the costs of the proceeding.

Note:

Background

Background to the litigation

The statement of agreed facts includes agreement about formal matters. The applicant is an Australian Building and Construction Inspector, appointed pursuant to s 57 of the BCII Act and is eligible to bring proceedings for a civil penalty for a contravention of a provision of that Act, pursuant to s 49(6). The first respondent is an organisation, registered pursuant to the WR Act and both a building association and an industrial association within the definitions of those terms in s 4 of the BCII Act. At the relevant times, the second respondent was a member of the first respondent and was an officer of it acting within that capacity, as a shop steward.The facts The case concerns incidents in September and October of 2006 at a building site in Morwell, at which the construction of a Police and Law Courts Complex was in progress. The principal contractor on that site was Hooker Cockram Projects Ltd (“Hooker Cockram”), which is agreed to have been a building employer, a building industry participant, and a constitutional corporation, within the meaning of each of those terms as defined in s 4 of the BCII Act. The second respondent was employed by Hooker Cockram. The project manager for Hooker Cockram was Michael Woolf. Celltech Australia Pty Ltd (“Celltech”) had been retained by Hooker Cockram to perform subcontracting work at the site. It was a building employer, a building industry participant, a building contractor and a constitutional corporation, within the meaning of each of those terms as defined in s 4 of the BCII Act. It did not have any form of agreement with the first respondent as to the terms and conditions of employment of employees on that site. The managing director of Celltech was Alex Buntine. Ryan Buntine and Paul Hanegraaf were employees of Celltech. The work performed on the site is agreed to have constituted building work, within the meaning of that term as defined in s 5 of the BCII Act. There were relevant industrial instruments applicable to the terms and conditions on which work was performed on the site. They were the National Building and Construction Industry Award 2000, the National Building and Construction Industry Victorian Common Rule Declaration 2005 (which, with minor exceptions, incorporates the terms of the National Building and Construction Industry Award 2000) and the Hooker Cockram Projects Ltd and CFMEU Building and Construction Industry Enterprise Agreement 2005-2008. On the morning of 19 September 2006, Ryan Buntine and Mr Hanegraaf attended the site to perform work on behalf of Celltech. The usual duties of the second respondent included the induction of workers coming onto the site for the first time to perform work. On that morning, the second respondent advised Mr Woolf that he refused to induct Ryan Buntine and Mr Hanegraaf. As a consequence, the induction process was undertaken by Mr Woolf. On the same morning, at a meeting between the second respondent, Mr Woolf, Ryan Buntine and Mr Hanegraaf, Mr Woolf told the second respondent that Ryan Buntine and Mr Hanegraaf would be painting epoxy onto a cell door at the site. The second respondent stated that this was CFMEU work, not AMWU work, and that Ryan Buntine and Mr Hanegraaf needed an EBA (being a reference to an enterprise bargaining agreement) and all appropriate paperwork, to work at the site. Mr Woolf advised the second respondent that his position was “illegal” and that Ryan Buntine and Mr Hanegraaf did not need an EBA and that there were “no demarcations anymore”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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