Office of the Australian Building and Construction Commissioner

Judgement

• On 5 February 2009, the Federal Court found that Mr Bob Mates and the CFMEU contravened s.43 of the BCII Act on three occasions at a building site in Heidelberg, Victoria:
• On 15 and 17 February 2006 Mr Mates demanded that a new contractor on site employ two former shop stewards and the OH&S officer who had been employed by the previous contractor (which had met financial difficulties). He also demanded that the new contractor appoint these people as shop stewards and OHS officer respectively.
• Mr Mates threatened that the project would never recommence and “was not going to happen” if his demands were not met.
• On 21 February 2006 Mr Mates demanded that the site’s crane crew shut down the crane and leave the site, which they ultimately did. Mate’s intention in shutting down the crane operations was to coerce the labour hire company, Hardcorp, to re-employ the former CFMEU shop stewards and OH& S officer.
• The ABCC also alleged that Mr Mates contravened s.43 of the BCII Act by organising a picket line at the site which began on 22 February 2006. Her Honour Justice Kenny did not find Mr Mates liable for this contravention.
• Kenny J also did not find that Mr Mates or the CFMEU contravened s.38 of the BCII Act by causing the removal of the crane at the site on 21 February 2006, as alleged.

Background

• In early 2006, Transit Joint Venture Pty Ltd (TJV) was undertaking a construction project in Heidelberg, Victoria.
• Between December 2005 and January 2006, employees of Melbourne Transit Pty Ltd, a labour hire company employing workers at the site, were made redundant as the company had entered voluntary administration.
• TJV engaged Hardcorp as a labour hire company to replace Melbourne Transit on the site.
• Mr Mates demanded that Hardcorp employ the people who Melbourne Transit had employed as shop stewards and as the OHS officer.
• When Hardcorp failed to comply, Mr Mates carried out his earlier threat by directing that the employees of Independent Cranes Pty Ltd (IC) leave the site.
• Picketing took place from 22 February to 3 March 2006, but the evidence did not establish that Mr Mates organised the picket.

ABCC proceedings

• As a result of the ABCC’s application, Kenny J granted an interim injunction against the CFMEU (including its officers, employees, or agents) on 10 March 2006 restraining it from:
• preventing crane operators, including IC, from attending and working at the site; and
• encouraging or otherwise continuing the picketing and impeding entry and exit from the site
• The final hearing of the alleged breaches of s.38 and s.43 of the BCII Act – concerning unlawful industrial action and coercive behaviour by Mr Mates, commenced on 14 July 2008. The respondents submitted that there was “no case to answer”.
• A directions hearing with respect to penalties, costs and any other remaining issues will be held on 16 February 2009.

Maximum penalties

• The maximum penalties for each contravention of s.43 of the BCII Act are $22,000 for an individual and $110,000 for the union.