Thursday, 26 February 2009
1. The Full Court of the Federal Court dismissed the CFMEU’s appeal against the severity of an earlier penalty imposed by Justice Graham on union official Mr Edmond Casper of $1,250. The penalties imposed by Justice Graham on the CFMEU and the CFMEU (NSW) remain at $15,000 respectively. The penalties imposed on Mr Michael Lane total $4,000.
2. The Full Court determined that the Court had the power to make the publication and destruction orders of 26 March 2007, in response to the breaches which were proved against the unions and officials. However the Full Court overturned Justice Graham’s publication and destruction orders because of the extended time that had elapsed since the contraventions and the difficulties in complying with the broad destruction orders as they were issued [2009] FCAFC 17.
Friday, 28 November 2008
3. The matter was heard before the Full Court of the Federal Court. The court has reserved its judgement.
Monday, 14 July 2008
4. After an appeal by the ABCC from an earlier decision, Justice Graham of the Federal Court imposed penalties on the CFMEU, CFMEU (NSW) and Mr Lane for making false and misleading statements
Hadgkiss v CFMEU, CFMEU (NSW Branch), Casper and Lane (No.5) [2008] FCA 1040, 14 July 2008. The statements were made to a ProFinish Interiors Pty Ltd foreman about the obligation of four plasterers to join the union.
5. The CFMEU and CFMEU (NSW) were each penalised an additional $5,000, taking the total penalty imposed against them to $15,000 each. Mr Lane was penalised an additional $2,000 penalty, the maximum penalty at the time of the contravention in February 2004.
6. Justice Graham again dismissed claims by the ABCC that Mr Edmond Casper had coerced Innovation Interiors to refuse to use the services of five plasterers because they were not union members.
Wednesday, 5 March 2008
7. The Full Court of North J, Lander J. and Buchanan J. by majority upheld two parts of an ABCC appeal from Graham J.’s decision.
8. The proceeding was remitted to Graham J. to consider imposing penalties in light of the Full Court’s findings.
9. The remaining components of the CFMEU’s appeal against Graham J.’s orders which were stayed pending the outcome of the ABCC appeal are:
a. The orders made for the destruction of all “CFMEU Code of Conduct for Union Delegates” forms and for corrective advertisements in the Illawarra Mercury newspaper be set aside; and
b. Lesser penalties be imposed.
Thursday, 20 December 2007
10. The appeal by the CFMEU, CFMEU (NSW), Mr Casper and Mr Lane against Graham J.’s decision that a representation must be intentionally false and/or intentionally misleading before section 298SC(c) is contravened was dismissed by the Full Court on 20 December 2007.
Monday, 16 April 2007
11. The ABCC and the unions filed appeals against different aspects of Graham J.’s 9 February 2007 decision.
Monday, 26 March 2007
9. Judgement in Hadgkiss v CFMEU, CFMEU (NSW), Casper and Lane (No. 4) [2007] FCA 425.
10. Graham J. imposed a penalty of $10,000 on each of the Federal CFMEU and its NSW Branch.
Penalties of $2,000 were imposed on Mr Lane and $1,250 on Mr Casper.
11. Graham J. ordered each of the unions to place a full-page advertisement in the Illawarra Mercury before 20 April 2007.
12. The advertisement is required to advise that:
a. workers have a choice about joining a union;
b. you don’t have to a member of a union to work on a site; and
c. that the advertisement arose from a finding by the Federal Court that a delegate and a representative had each made false and misleading statements at local building sites.
13. The CFMEU was also ordered to destroy the CFMEU Code of Conduct for Union Delegates within 28 days. The code includes the following statement to be agreed to and followed by delegates: ‘I, (name) hereby agree to abide to the best of my capacity by the CFMEU Code of Conduct for union delegates as detailed below: To ensure that all workers on site are financial members of the relevant union, and to receipt all monies received from members in the appropriate receipt book, and paid to the union office on a regular basis.’
Friday, 9 February 2007
14. Judgement in Hadgkiss v CFMEU, CFMEU (NSW), Casper and Lane (No. 3) [2007] FCA 87. The court found that the respondents had breached the former WR Act by making false and misleading statements. The decision on penalties was reserved.
15. Graham J. found in favour of the ABCC in relation to three allegations of false and misleading statements – one against Mr Casper, two against Mr Lane and three against each union. He found the other allegations unproven.
16. Graham J. dismissed the ABCC’s application for orders that: a. On 17 February 2004, Mr Lane made a false and misleading statement to the Pro Finish foreman about the obligation of four plasterers to join the union;
b. On 18 February 2004, Mr Casper advised, encouraged or incited Innovation Interiors Pty Ltd to refuse to make use of the services of five plasterers because they were not members of the union; and
c. On 17 February 2004, Mr Lane threatened to take industrial or other action with the intention to coerce ProFinish and their foreman to make an EBA with the union.
Summary of allegations in the ABCC’s Statement of Claim
17. In July 2005, the Building Industry Taskforce, now subsumed by the ABCC, filed proceedings in the Federal Court Sydney against the CFMEU, CFMEU (NSW) an organiser, Michael Lane, and a delegate, Edmond Casper.
18. The allegations related to conduct during January and February 2004, when it was alleged that the respondents breached the freedom of association and coercion provisions of the pre-reform Workplace Relations Act 1996 by:
a. making false and misleading statements on building sites at Fairy Meadow and Wollongong about the obligation of several plastering subcontractors to become union members;
b. threatening to take industrial action against contractor Innovation Interiors Pty Ltd, that engaged the plasterers on the Northgate site, with the aim of coercing the company into
a CFMEU certified agreement; and
c. advising and inciting Innovation Interiors to refuse to engage the plasterers because they were not union members.
19. Five plastering subcontractors were engaged by ProFinish to work on the Fairy Meadow building site.
20. Mr Lane, a CFMEU organiser and Mr Casper, a site delegate for the CFMEU, approached the five plasterers and made representations to the effect that they could not work on the site unless they were financial union members.
21. Three weeks later Mr Lane told the foreman for ProFinish that he wanted all workers on another Wollongong site, known as the City Beach Apartments, to be covered by a CFMEU certified agreement. Mr Lane allegedly said that unless ProFinish entered into a certified agreement with the CFMEU, ProFinish would not be able to continue work on the site and that he would report ProFinish to the Australian Taxation Office.
22. The next day, four of the original plasterers who were engaged by a different contractor, Innovation Interiors Pty Ltd, to work on the City Beach Apartments site had their contracts terminated by Innovation Interiors management after only one day’s work. This was purportedly on the basis that there was no more work for them to perform. Innovation Interior’s managers indicated to the Court that they terminated the plasterers under pressure from Lane because the plasterers were not union members.
23. As a result of Mr Casper and Mr Lane’s actions, the plasterers were asked to leave the site and did not obtain alternative work for between two and three weeks.