The investigation of this matter by the Building Industry Taskforce (BIT) related to strike action taken over four days in July and August 2004 by workers at the Barclay Mowlem Railway Station site at Thornlie, Western Australia.
The proceedings instituted by the BIT claimed that representatives or agents of the CFMEU, including two CFMEU organisers, Michael Powell and Walter Molina had attended meetings with the employees on 9 July 2004, 29 July 2004 and 19 August 2004. As a consequence of these meetings the employees commenced the industrial action.
It was also claimed that the two organisers had attended meetings on 13 July 2004 to report back on the industrial action and a further meeting with employees on the site on 13 August 2004. The Australian Building and Construction Commissioner (ABCC) alleged that Molina and Powell conveyed information and claims relating to the industrial action to the employer. It was further alleged that on 9 July 2004, Powell threatened the project manager on site that he would ‘take the boys out.’
Hearing – Industrial Magistrates Court
Date Filed: 8 September 2004
Decision handed down: 28 April 2005
Magistrate Tarr found that the Respondents engaged in industrial action for the purpose of supporting or advancing claims against the employer in breach of s.170MN of the Workplace Relations Act 1996. Additionally the Magistrate found the Respondents failed to comply with the Dispute Settlement Procedure of the relevant Certified Agreement.
Magistrate Tarr held that although safety was raised by the Respondents as an issue, there was no doubt in his mind "there were no safety issues of any significance" and that the evidence did not support claims that the industrial action was based on a reasonable concern by the Employees about an imminent safety risk. Magistrate Tarr rejected the claim made by the Respondents that they played no part in the industrial action, deciding "that there is an irresistible inference that the union by its officers played a significant part in the activities which lead to the withdrawal of labour and, in turn, the breach of the agreement".
Magistrate Tarr stated that the union by its officers including its organisers and site steward called, arranged and attended three meetings which resulted in the withdrawal of labour. In the Magistrates’ view they had direct involvement in the industrial action and had not engaged in the steps provided for in the dispute resolution procedure.
The CFMEU was penalised $6,000, with its Organisers Powell and Molina penalised $1,500 and $1,000 respectively.
Related Document - Copy of decision: Clarke v CFMEU, Powell and Molina (PDF 56KB)
First Appeal Case –- Federal Court of Australia
Date filed: 18 May 2005
Appeal dismissed: 17 March 2006
CFMEU, Molina and Powell v Clarke
Federal Court - Perth - 17 March 2006
The Respondents appealed the decision of Magistrate Tarr.
Nicholson J. dismissed the appeal. In doing so, His Honour ruled
"There is no constitutional concept of the Union on the one hand and the Employees on the other hand. The Employees are as much an integral part of the Union as the officials. The consequence is that if the Employees make a decision to go on strike, the Union is on strike."
Nicholson J. found no error of law or fact in the decision or the conclusions reached by the Industrial Magistrate. The decision and penalties imposed by the Magistrates Court was affirmed.
Related Document - Copy of CFMEU Appeal: CFMEU v Clarke (PDF 76KB)
CFMEU, Molina and Powell v Clarke
Second Appeal case – Full Federal Court
Date filed: 3 April 2006
Decision handed down: 8 June 2007
The CFMEU filed a further appeal to the Full Court of the Federal Court of Australia.
On 8 June 2007, the Full Court delivered a unanimous decision upholding the appeal and dismissing the proceedings. The penalties were set aside and no order was made as to costs.
The Full Court decided that the workers were discouraged from striking by the union. The Full Court concluded that the Magistrate erred in finding that there was “an irresistible inference” that the CFMEU played a significant part in the activities which led to the withdrawal of labour.