This matter involved an allegation by the Taskforce that the CFMEU and two of its branch officials breached s170NC by coercing Mar Gra Pty Limited (“Mar Gra”) to make a certified agreement.
In May 2002, Mar Gra had entered into a written contract with FKP Constructions Pty Ltd (“FKP Constructions”) to manufacture and install marble and tile products at the Macarthar Chambers construction site.
The Taskforce alleged that the CFMEU and two of its organisers coerced Mar Gra to make an agreement when they first threatened to take industrial action and then took industrial action in November 2002. The relevant conduct alleged to constitute coercion included a discussion between the first union official and Mr John Murdoch who was employed by FKP Constructions as Site Manager whereby the first union official informed Murdoch that three employers working on the site were not paying correct entitlements for the employees and had not signed a certified agreement. The official informed Murdoch that if these issues were not resolved by 28 November 2002 the official would recommend to the workers on the site that they withdraw their labour on 28 November 2005.
Further it was alleged that in a telephone call to Mr Murdoch on 25 November 2002 the second union official threatened to close the site on 28 November 2002 if Mar Gra did not sign a certified agreement.
It was also alleged that on 28 November 2002 the first union official approached Murdoch and enquired as to whether MaGra had a certified agreement with the CFMEU. Murdoch replied that he did not believe that Mar Gra had such an agreement. The first union official then attended a meeting of workers. Mar Gra workers were not at the meeting. Shortly thereafter the union official informed Murdoch that the workers had voted to withdraw their labour as they did not want to work with contractors who did not have a certified agreement with the CFMEU.
Finally it was alleged that the first union official told Murdoch that Murdoch was not to permit Mar Gra or any workers of Mar Gra to work on the site until a further meeting was held on 29 November 2002. The official informed Murdoch that he would cause all other FKP building sites to be closed if Murdoch or FKP did not comply with the demand to prevent employees of Mar Gra working on the site.
Decision
Spender J said that the real question to be decided was whether the dealings between the union officials and Mr Murdoch were directed at securing the agreement of Mar Gra to make a certified agreement, or were done with an intention that included that object, or as the union contended, were directed at securing the payment of entitlements.
His Honour was satisfied that s170NC(1) does not require that the requisite industrial action or other action be directly imposed upon the person who it is intended to coerce. All the section requires is that the industrial action or threat of industrial action is taken with the requisite coercive intent.
His Honour said if there were threats made to Mr Murdoch and those threats were “to take any industrial action or other action” and they were made with intent to coerce Mar Gra to agree to making a certified agreement, then the necessary elements of the offence created by s170NC would be satisfied. Additionally, His Honour said it would be sufficient if the intent to coerce Mar Gra into entering a certified agreement was merely one of the objects of the union officials.
However, His Honour was not satisfied that there was any intention on the part of either union official to coerce Mar Gra to make a certified agreement and for that reason dismissed the application. His Honour found that the union officials did not intend to coerce Mar Gra to enter a certified agreement but rather intended to secure the assistance of Murdoch in getting Mar Gra to honour its contractual obligations in respect of payment of entitlements.