WHITE v CFMEU - [2010] FMCA 693

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITE v CFMEU & ANOR

[2010] FMCA 693

INDUSTRIAL LAW – FAIR WORK – Admitted contraventions of Building and Construction Industry Improvement Act – agreed statement of facts – application by respondents to give evidence through counsel from bar table – consideration of admissibility of such evidence – consideration of penalties to be imposed.

Building and Construction Industry Improvement Act 2005, ss.30, 38
Human Rights and Equal Opportunity Commission Act 1986

Hogan v Reily [2010] FCAFC 30
Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818
Cruse v Construction, Forestry, Mining and Energy Union (2009) 182 IR 60
Veen v R (No.2) (1988) 164 CLR 465
Kelly v Fitzpatrick (2007) 166 IR 14
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466

Applicant:

MICHELLE WHITE

First Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent:

ADRIAN MCLOUGHLIN

File Number:

MLG 862 of 2009

Judgment of:

Burchardt FM

Hearing dates:

14 & 20 July 2010

Date of Last Submission:

20 July 2010

Delivered at:

Melbourne

Delivered on:

21 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr J Snaden

Solicitors for the Applicant:

Clayton Utz

Counsel for the Respondents:

Ms R Doyle SC

Solicitors for the Respondents:

Emma Walters

THE COURT DECLARES THAT:

On Tuesday 19 February 2008 the First Respondent constituted by the Second Respondent contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) by imposing a ban on the performance of work by employees of Ward Strongforce Management Pty Ltd at the Alto Apartments building construction site located at 594 St Kilda Road, Melbourne between approximately 6.45 am and

8.30 am.
On Tuesday 19 February 2008 the Second respondent contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) by imposing a ban on the performance of work by employees of Ward Strongforce Management Pty Ltd at the Alto Apartments building construction site located at 594 St Kilda Road, Melbourne between approximately 6.45 am and 8.30 am.

AND THE COURT ORDERS THAT:

The First Respondent shall not later than 30 days from the date of this Order pay into the Consolidated Revenue Fund a pecuniary penalty of $38,500.00.
The Second Respondent shall not later than 30 days from the date of this Order pay into the Consolidated Revenue Fund a pecuniary penalty of $7,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 862 of 2009

MICHELLE WHITE

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

ADRIAN MCLOUGHLIN

Second Respondent

REASONS FOR JUDGMENT

Introductory

The applicant seeks declaratory relief and the imposition of penalties upon both respondents for their admitted contraventions of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth) (“BCII Act”).
Although there are a number of sub issues, the primary matter of dispute is the level of penalty which should be imposed upon the respondents for this conduct. For the reasons that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WHITE v CFMEU

Details

AGLC: WHITE v CFMEU [2010] FMCA 693
Case: [2010] FMCA 693
Decision Date: 21 September 2010

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Michelle White brought proceedings against the Construction, Forestry, Mining and Energy Union (CFMEU) and Adrian McLoughlin, an officer of the CFMEU, seeking declaratory relief and penalties for their admitted contraventions of section 38 of the Building and Construction Industry Improvement Act 2005 (Cth). The primary dispute centred on the appropriate level of penalty to be imposed on the respondents for their conduct. The court was tasked with determining whether declaratory relief was necessary and, if so, the appropriate penalties to be imposed on the respondents. The agreed facts established that the respondents had contravened the Act by imposing a ban on employees of Ward Strongforce Management Pty Ltd at the Alto Apartments construction site, causing delays and additional costs for Brady Constructions Pty Ltd, the head contractor. The court found that while the interruption caused some financial loss and inconvenience, the overall loss was relatively small. The court rejected the respondents' submissions regarding Mr McLoughlin's motivations, finding that the evidence did not support the notion that his actions were solely based on safety concerns. The court emphasised the importance of proper evidence in civil proceedings, distinguishing them from criminal cases. In determining the penalties, the court considered factors such as specific and general deterrence, the need to prevent future contraventions, and the financial capacity of the respondents. The court ultimately decided to impose penalties of 35 per cent of the applicable maximum on both respondents, amounting to $38,500 for the CFMEU and $7,700 for Mr McLoughlin. The court also granted the declaratory relief sought by the applicant, noting that while such declarations may sometimes be redundant, they were appropriate in the circumstances of this case. The court reserved the issue of costs for further consideration.

Orders