On 2 March 2006 the ABCC successfully sought an interlocutory injunction to stop the CFMEU and its organiser, Mr Bob Mates, from taking industrial action at a Heidelberg building site.
At the time of seeking the injunction, there was no productive work being carried on at the site. Several days prior, on 21 February 2006, Mr Mates attended the site and told the crane crew to shut down the only crane that was on site and leave site.
Justice Kenny granted an interim injunction on 10 March 2006.
The hearing over the alleged civil penalty contraventions commenced in July 2008, where the ABCC alleged breaches of s.38 and s.43 of the BCII Act, in relation to unlawful industrial action and coercive behaviour by Mates.
The respondents unsuccessfully submitted that there was ‘no-case’ to answer. On 4 August 2008 Justice Kenny ruled that industrial organisations such as the CFMEU are capable of contravening s. 38 of the BCII Act.
Final submissions were put to Justice Kenny on 12 August 2008 and judgment on liability was handed down on 5 February 2009. A penalty hearing was held on 1 June 2009.
Judgment
In this proceeding, the ABCC alleged that Mr Mates contravened s.38 and s.43 of the Building and Construction Industry Improvement Act 2005 (BCII Act) (unlawful industrial action and taking action with intent to coerce a person to employ, or designate particular duties to a building employee) in relation to a site at Mount Street, Heidelberg, Victoria.
On 5 February 2009, Justice Kenny handed down her decision and found that Mr Mates and the CFMEU contravened the coercion provisions at s.43 of the BCII Act, on three occasions, being:
15 and 17 February 2006
Two meeting were held with Mr Mates and Mr Anthony Goss on 15 and 17 February 2006. Mr Goss was the sole director of the new labour hire company on site, Hardcorp Pty Ltd. Mr Goss was also the director of the old labour hire company on site that had gone into voluntary administration (TJV). At these meetings Mr Mates demanded that Mr Goss employ two former shop stewards and the OH&S officer. These officers had been employed by TJV.
Mr Mates also demanded that Hardcorp Pty Ltd appoint these people as shop stewards and OHS officer respectively.
Mr Mates had threatened that the project would never recommence and “was not going to happen” if his demands over the re-employment of these persons were not met.
21 February 2006
Mr Mates then attended the site on 21 February 2006 and demanded that the site’s crane crew shut down the only crane at the site and leave the site, which they ultimately did. Mr Mates’ intention in shutting down the crane operations was to coerce the new labour hire company, Hardcorp, to re-employ the former CFMEU shop stewards and OH& S officer.
Justice Kenny did not find that Mr Mates had engaged in unlawful industrial action as pleaded or argued in the trial.
A hearing on penalty hearing was held 1 June 2009.