Office of the Australian Building and Construction Commissioner

Judgement [2008] FMCA 1591

• On 10 December 2008, Federal Magistrate Burchardt held that Craig Johnston and the CFMEU engaged in unlawful industrial action.
• Mr Johnston, and the CFMEU by the conduct of Mr Johnston, contravened s. 38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) and s. 494 of the Workplace Relations Act 1996 (WR Act).
• It was found that Mr Johnston caused work to cease without the authorisation of his employer by preventing a delivery of building materials from being unloaded.
• Burchardt FM instructed the parties to prepare declarations on further orders.

Background

Allegations in the ABCC’s statement of claim

• In 2007, Wycombe Constructions Pty Ltd was the head contractor on the Deakin University Medical School Refurbishment Project in Waurn Ponds, Victoria. Wycombe employed two labourers at the site including CFMEU shop steward, Mr Johnston.
• Wycombe had a certified agreement with the CFMEU which had a nominal expiry date of 31 March 2008. The agreement regulated the terms and conditions of employees at the Deakin University site who were members of the CFMEU.
• Wycombe engaged Big Contractors Pty Ltd to perform metal, carpentry and plastering work. Big did not employ its own labourer at the site. From early 2007, Mr Johnston allegedly pressured directors of Big to employ a labourer on the site.
• On 19 March 2007, Mr Johnston allegedly stopped a Wycombe employee from unloading building materials, intended for Big, from a supplier.
• The Wycombe site manager instructed the employee to unload the materials, however Mr Johnston and the employee allegedly refused to follow the site manager’s instructions.
• Subsequently, the supplier’s truck left the site without being unloaded.

Alleged contraventions

• Mr Johnston is alleged to have:
• taken unlawful industrial action contrary to s.38 of the BCII Act and
• taken industrial action before the nominal expiry date of the certified agreement,
• contrary to s.494 of the WR Act.
• The CFMEU is alleged to be liable for the conduct of Mr Johnston as their officer or agent.

Penalties

• The maximum penalties that may be imposed by the court for a breach of section 38 of the BCII Act are $22,000 for an individual and $110,000 for a union.
• The maximum penalties that may be imposed by the court for a breach of section 494 of the WR Act are $6,600 for an individual and $33,000 for a union.