Office of the Australian Building and Construction Commissioner

Penalties, compensation and injunction for Pluto strikes

Radisich v CFMEU, CFMEUW and McDonald

Woodside Burrup Pty Ltd v CFMEU and McDonald

Background

• On 22 August 2011 the Federal Court in Perth delivered decision in this matter that arose from strike action on 1 and 2 December 2009 at the Pluto LNG Project near Karratha in the Pilbara region of Western Australia (the Pluto Project).
• At pre-start meetings on 27 November 2009 Woodside informed workers that they intended to introduce a ‘motelling’, a system of managing accommodation for workers on the project.
• Motelling involves workers' accommodation in dongas at Gap Ridge Village changing at the end of each work roster, rather than being allocated dongas on a permanent basis for the duration of their employment.
• On the afternoon of 27 November 2009 CFMEU official Joe McDonald held a meeting outside the front gate of the accommodation village, calling a motion to reconvene at 8.00 am on 30 November 2009 and sit on the grass if the motelling decision was not reversed.
• On the afternoon of 30 November 2009, Mr McDonald held a further meeting outside the accommodation village.  Several hundred employees attended the meeting.
• Mr McDonald informed the meeting that the employees present needed to decide whether they would prefer to go on a one, two, three or seven day strike.
• Mr McDonald called for a vote on a motion from the floor to take strike action for 48 hours.
• After a show of hands from those present, Mr McDonald said words to the effect of “So we go back to work on Thursday.”
• On 1 December 2009 approximately 1200 employees employed by contractors at the project failed to attend for work.
• On 2 December 2009 approximately 1340 employees employed by contractors at the project failed to attend for work.

Admitted contraventions

• The CFMEU and divisional Assistant Secretary of the CFMEU Mr Joe McDonald admitted in a statement of agreed fact that they contravened s.38 of the Building and Construction Industry Improvement Act 2005 by:

a) Engaging in unlawful industrial action in the form of a work ban on the performance of building work by employees employed on the Pluto Project on 1 and 2 December 2011.

b) Aided, abetted counselled and procured unlawful industrial action on 1 and 2 December 2009.

Agreed penalties

• The Court ordered penalties of $71,000 be imposed on the CFMEU and $14,000 be imposed on Mr McDonald for unlawful industrial action.

Agreed compensation

• The Court ordered $1,500,000 compensation for damages be paid by the CFMEU to Woodside Burrup Pty Ltd.
• The Court further ordered the CFMEU must indemnify Woodside Burrup 25% of all liabilities, costs and expenses they may incur as a result of claims by contractors as a result of the unlawful industrial action to a maximum of $500,000.

Injunction order

• In addition to being the majority owner and operator of the Pluto Project, Woodside Burrup and related corporate bodies have interests in the North West Shelf Project and the Browse LNG Project.
• The Court ordered that the CFMEU and Mr McDonald be permanently restrained from engaging in any industrial action or threatening, organising, counselling, encouraging, procuring or otherwise being involved in any industrial action in connection with the Pluto Project, the North West Shelf Project or the Browse LNG Project.
• The injunction order will restrain and deter repeated contravening conduct by the respondents.

Court proceedings

• On 12 February 2010 the ABCC filed proceedings in the Federal Court in Perth seeking civil penalties and injunctions against respondents restraining them from being involved in any further unlawful action in respect of modelling at the Pluto Project.
• The ABCC filed a Notice of Motion seeking orders that the proceeding be consolidated with Woodside’s proceeding relating to the same work stoppage [WAD16/2010].
• On 17 February 2010 the Court ordered this case be heard together with Woodside’s proceeding.
• On 10 September 2010 the ABCC discontinued its application against the CFMEU, CFMEUW and Mr McDonald. 
• The ABC Commissioner chose to exercise his right to intervene in the Woodside proceeding relating to the December 2009 work stoppages at the Pluto Project. 
• On 21 June 2011 a penalty hearing took place.  His Honour Justice Gilmour reserved his decision. Judgment was delivered on 22 August 2011.