Alfred v Primmer, CFMEU & CFMEU (NSW Branch)
Tuesday, 3 March 2009
Penalties
1. Cameron FM imposed penalties of $3,500 on Mr Peter Primmer for contraventions of s.800(1)(a) of the Workplace Relations Act 1996 (WR Act).
2. The CFMEU and CFMEU (NSW) were ordered to pay penalties of $10,000 each for contraventions of s.800(1)(a) of the WR Act.
Monday, 3 November 2008
Judgment
1. In the Federal Magistrates Court at Sydney today, Cameron FM found that CFMEU organiser Peter Primmer contravened s.800 (1) (a) of the WR Act on two occasions on 12 October 2006, Mr Primmer advised and encouraged the head contractor on the Kiama High School redevelopment site to terminate the contract of a painting subcontractor for a prohibited reason. That reason was that the subcontractor was the subject of dispute proceedings initiated by the CFMEU the NSW Industrial Relations Commission.
2. In making his findings, Cameron FM said:
“
It is clear that Mr Primmer was saying that C&C should dissociate itself from Fine Line, by preventing that company from working on the Project, and the root cause of this was the NSWIRC proceedings.”
3. His Honour found that, Mr Primmer’s conduct as a union organiser was carried out on behalf of the union. As such, the CFMEU and CFMEU (NSW Branch) were also found to have contravened s.800 of the WR Act. Cameron FM said:
“
The unions cannot escape vicarious liability in circumstances such as these even if Mr Primmer’s conduct was not permitted by their rules.
4. A directions hearing in respect of penalties is scheduled for 21 November 2008.
Friday, 26 September 2008
5. In the Federal Magistrates Court at Sydney, Cameron FM heard the case against CFMEU organiser, Peter Primmer, the CFMEU and the CFMEU (NSW Branch).
6. On 26 September 2008, at the end of the hearing, the contravention that had been alleged to have occurred in September 2006 was not pursued.
Background Facts
As alleged in the ABCC’s original Statement of Claim
7. In November 2005, the Department of Commerce NSW awarded a contract for the upgrade of Kiama High School, Kiama NSW. The head contractor engaged a subcontractor from Nowra, NSW to carry out the painting work.
8. On 28 April 2006, the NSW CFMEU commenced dispute proceedings against the subcontractor in the Industrial Relations Commission of NSW alleging non-payment of award entitlements to an employee for two days in November 2003.
9. On 14 September 2006, CFMEU organiser Peter Primmer demanded that the head contractor not engage the subbie because the subbie was currently involved in a court action about non-payment of wages.
10. The Industrial Relations Commission of NSW proceeding was formally discontinued by the NSW CFMEU on 26 September 2006.
11. On 12 October 2006, Mr Primmer entered the Kiama site and told the head contractor’s foreman that the head contractor had to stop the subbie from continuing to work on the project as the subbie was currently involved in court proceedings over unpaid wages.
12. Mr Primmer told the foreman that if the head contractor did not stop the subbie from continuing to work on the project, then the project would be stopped.
13. While still at the construction site, Mr Primmer told the head contractor’s occupational health and safety officer, in effect, that if the head contractor did not cease using the subbie, the local media would be informed that the head contractor was using subcontractors embroiled in dispute proceedings before the court over unpaid wages.
Contraventions of the Workplace Relations Act 1996 (WR Act)
14. Under the WR Act, a person must not, for a prohibited reason:
• refuse to engage a contractor (s.792(5)(d)) or
• terminate a contract for services that it has entered into (s.792(5)(a)). 15. Subsection 793(1)(k) of the WR Act provides that refusing to engage a contractor, or terminating the services of a contractor, because they have participated in a proceeding under an industrial law is considered a prohibited reason.
16. The Office of the Australian Building and Construction Commissioner (ABCC) alleges that Mr Primmer, the CFMEU and the CFMEU (NSW) breached s.800 of the WR Act because Mr Primmer both advised or encouraged unlawful termination and threatened industrial action with intent to coerce the head contractor into unlawfully terminating the subbie’s contract.
17. Mr Primmer’s conduct is alleged to be the conduct of the CFMEU and NSW CFMEU because it was carried out on behalf of the unions in his role as an organiser.
ABCC Prosecution
18. The ABCC filed proceedings in the Federal Magistrates Court at Sydney on 16 April 2007.
19. The matter was heard on 22-26 September 2007 before Federal Magistrate Cameron.
20. On 3 November 2008, FM Cameron found that the Mr Primmer, the CFMEU and NSW CFMEU contravened s.800 of the WR Act.
21. A hearing on penalties is scheduled for 21 November 2008.
Penalties
22. The maximum penalties for breach of s.800 WR Act are $6,600 for an individual and $33,000 for an organisation.