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Martino v CFMEU and Maher


Applicant:
ABCC Inspector Melissa Martino 
Respondent(s):
CFMEU and Allan Maher 
Date filed:
10 November 2005 
Outcome:

On 10 May 2006 Magistrate Hawkins imposed a penalty of $13,500 on the CFMEU and a penalty of $450 on Mr Maher. In determining the appropriate penalty to apply, Magistrate Hawkins particularly noted several matters that she considered relevant to penalty:

  • the CFMEU’s prior contraventions, although no prior contraventions were alleged against Mr Maher
  • the findings of the Cole Royal Commission relating to the unlawfulness of the CFMEU’s policy of ‘no EBA, no start’. Her Honour observed that in light of that finding, the CFMEU ought to have known that the conduct was prohibited
  • One express purpose of s.170NC was to prevent ‘pattern bargaining’ in the construction industry, a purpose that would be frustrated by the type of conduct that took place in this case.

Her Honour also accepted that the national union, and not merely the Victorian branch of the CFMEU, was liable for the conduct. On that basis, Her Honour noted that the CFMEU was a large national union with significant financial reserves.

Her Honour ordered a penalty against the CFMEU of $15,000 discounted by 10% because the CFMEU did not contest the charges, and a total penalty of $450 against Mr Maher which also included a discount. Both are to be paid into consolidated revenue within 28 days.
Background:

On 26 October 2004, a shop steward (Mr. Maher) for the CFMEU employed by Jelena Pty Ltd prevented a subcontractor (Civiltest) from entering the Allegro Apartments site at Footscray, Melbourne, to perform soil testing services.

The relevant certified agreement between the head contractor (Buildcorp) and the CFMEU provided for Mr Maher to conduct compulsory site inductions covering matters such as safety, superannuation and industry funds, but not certified agreements.

It was alleged that Mr Maher made representations to Civiltest to the effect that he would persuade Buildcorp to prohibit Civiltest from working on the site until Civiltest agreed to enter into a certified agreement with the CFMEU. It was further alleged that the CFMEU was a party to his conduct as Maher was acting as the CFMEU’s agent when he engaged in the contravening acts. Significantly, it was alleged that the intent of Mr Maher (and the CFMEU) was to prevent Civiltest from performing the contracted work unless it entered into a certified agreement with the CFMEU.

The ABCC commenced investigating the conduct of the CFMEU and Mr Maher in October 2005. In April 2006, a Statement of Agreed Facts was made and filed with the Melbourne Magistrates’ Court. The CFMEU and Mr Maher agreed to having contravened section 170NC of the WR Act (pre-Workchoices). The contravention carried a maximum penalty of $33,000 for the CFMEU and $6,600 for Mr Maher.