Ponzio v B&P Caelli Pty Ltd, CFMEU, Crnac and Spernovasilis

VIC , Backgrounder

Release date: 15 May 2007

In 1999, the CFMEU implemented a policy of staging an industry-wide 24 hour work stoppage when a death occurred in the industry.
In 2002, the CFMEU amended its policy so that when a death occurred in the industry, work would stop while a safety audit and rectification work was carried out on each construction site.
On 5 August 2003, following the death of a construction worker in Shepparton the previous week, the CFMEU conducted a safety audit at the Caelli Constructions Pty Ltd (Caelli) Concept Blue Apartment Project at 336 Russell Street, Melbourne.
Following the safety audit Caelli employees stopped work between 8.30am on 5 August 2003 and 10am on 6 August 2003 at the Concept Blue site.
There was no connection between the work that the Shepparton worker was performing and the work being performed by Caelli at the Concept Blue site.
On 25 and 26 August 2003, CFMEU officials Illia Crnac and Elias Spernovasilis, placed a ban on the use of forklifts by Caelli at the ID Apartments site at Port Melbourne with the intent to coerce Caelli to pay its employees for the period of the strike on the Concept Blue site.
On 25 August 2003, Mr Crnac and Mr Spernovasilis banned access to balconies where hand rails had been installed on the ID Apartments site.
On 26 August 2003, Mr Crnac and Mr Spernovasilis told a Caelli representative that unless Caelli paid its employees for the strike period, there would be further industrial action. Caelli agreed to pay and the bans were lifted.

The CFMEU, Mr Crnac and Mr Spernovasilis contravened s.187AB(1)(a) of the pre-reform WR Act by making a claim that Caelli pay strike pay.
Mr Crnac, Mr Spernovasilis and the CFMEU contravened s.187AB(1)(b) of the pre-reform WR Act by placing a ban on the use of forklifts by Caelli with intent to coerce Caelli to pay strike pay.
Mr Crnac, Mr Spernovasilis and the CFMEU contravened s.187AB(1)(b) of the pre-reform WR Act by placing a ban on access to balconies where there were handrails installed by Caelli with the intent to coerce Caelli to pay strike pay.
Caelli contravened s.187AA of the pre-reform WR Act by paying strike pay.
The maximum penalty for demanding or paying strike pay under the pre-reform WR Act was $10,000.
The maximum penalties for demanding or paying strike pay in relation to building industrial action under the post-reform WR Act are $22,000 for an individual and $110,000 for a body corporate.

The Office of the Australian Building and Construction Commissioner (ABCC) filed the Ponzio v B&P Caelli Pty Ltd, CFMEU, Crnac and Spernovasilis prosecution in the Federal Court at Melbourne on 24 December 2004.
Caelli admitted that it contravened s.187AA of the WR Act and agreed to a penalty of $6000, suspended for 12 months on the condition that it did not contravene the WR Act.
On 11 September 2006, North J dismissed the application against Caelli, the CFMEU, Mr Crnac and Mr Spernovasilis without penalty.
The ABCC appealed the North J decision on 26 September 2006.
A full bench of the Federal Court comprising Marshall J, Lander J and Jessup J upheld the appeal and today ordered a penalty of $6000 be imposed on Caelli. Caelli is not obliged to pay the penalty if it has not been adjudged to have breached the WR Act between 11 September 2006 and 10 September 2007.
The CFMEU was ordered to pay a penalty of $5,000 in respect of four contraventions of the pre-reform WR Act on 25 and 26 August 2003 :

demanding strike pay in respect of the strike on 5 and 6 August 2003;
banning the use of forklifts on both days with intent to coerce Caelli into paying strike pay;
banning access to balconies despite the presence of handrails.

Office of the Australian Building and Construction Commissioner