The applicant John Holland Pty Ltd is engaged in a joint venture to construct the Sydney Desalination Plant at Kurnell and Botany in New South Wales. It has applied to the Federal Court for civil remedies under the Workplace Relations Act 1996 (WR Act) and the Building and Construction Industry Improvement Act 2005 (BCII Act).
The application concerns alleged industrial action that took place from 3 to 9 March 2008. A number of diving workers refused to perform work at the Botany site. The site was also picketed by the Maritime Union of Australia which had the effect of preventing John Holland employees and contractors from entering or leaving the site.
It is alleged that this was unlawful industrial action in contravention of s38 BCII Act and s494 of the WR Act and that the respondents engaged in conduct intended to coerce the employer into making union collective agreement with the MCCA, contrary to section 44 of the BCII Act.
A preliminary point concerning the validity of the employee collective agreement said to apply to the workforce involved in the industrial action was the subject of a hearing on 23 March 2009 before Justice Graham. On 5 May 2009 Graham J handed down his decision striking out that part of the Defence which asserted that the employee collective agreement was not valid.
A statement of agreed facts including agreement on an appropriate penalty for the contraventions acknowledged by the union was presented to the Court.
Following a hearing on penalty before Graham J on 1 February 2010, the Court declared that the union’s conduct was contrary to the provisions of section 38 of the BCII Act and ordered that a penalty be imposed on the union in the sum of $15,400,such amount to be payable to John Holland.