Penalties and declarations
- On 5 November 2008, in the Federal Court in Melbourne Marshall J. imposed a penalty of $4,000 on the Construction, Forestry, Mining and Energy Union (CFMEU).
- The penalty was imposed for a contravention of s.170NC of the pre-Workchoices Workplace Relations Act 1996 (WR Act). This prohibited taking or threatening action to coerce another person to make a certified agreement.
- Marshall J. declared that CFMEU delegate Mr Fry had breached sections 170NC and 298SC of the WR Act.
- His Honour also made a declaration that the CFMEU had breached section 298SC(c) of the pre-reform WR Act.
- Section 298SC(c) of the pre-reform WR Act prohibited making false or misleading statements about another person’s obligation to join the CFMEU.
- His Honour adjourned the matter to 30 November 2008 for a hearing as to costs.
Judgment [2008] FCA 1267
- On 22 August 2008, Marshall J. held that Mr Fry and the CFMEU:
- contravened s.298SC(c) of the WR Act by making false and misleading statements regarding a Hamilton building contractor’s obligation to join the union; and
- contravened s.170NC of the WR Act by demanding that the building contractor enter into a certified agreement with the CFMEU.
- Marshall J. ruled CFMEU delegates Robert Bannister and Barry Hoffman and the CFMEU did not contravene s.43(1)(b), (c) and (d) of the Building and Construction Industry Improvement Act 2005 (BCII Act) which relate to coercion to not engage, allocate or designate duties or responsibilities to a particular person.
Background
As alleged in the Statement of Claim filed on 14 February 2007
- In August 2005, building contractor Frank Anton was engaged by Roche Mining (JR) Pty Ltd (RMJR) to carry out building work on its Mineral Sands Separation Plant (MSP) site near Hamilton in Victoria.
- CFMEU delegate Sam Fry told Mr Anton that he needed to have an enterprise agreement with the CFMEU and had to join superannuation fund CBUS in order to work on the MSP site.
- Mr Fry told Mr Anton to leave the site and return when he had become a member of the CFMEU, signed an enterprise agreement and joined CBUS. Mr Fry also gave Mr Anton a CFMEU membership application form.
- This representation was false and misleading as there was no obligation upon Mr Anton to be a member of the CFMEU in order to perform work on the project.
- This constituted conduct engaged on behalf of the CFMEU as Mr Fry was acting as a delegate of the CFMEU.
- Mr Fry attempted to coerce Mr Anton to agree to make, or approve the making of an agreement under the WR Act.
- Mr Anton complied with the demand by leaving the site and was prevented from performing the work he was engaged to carry out by RMJR.
- On or about 16 August 2005, Mr Anton joined the CFMEU. He joined Incolink on or about 29 September 2005 and entered into a certified agreement with the CFMEU on or about 16 August 2005.