Judgement
1. The Federal Court found that the respondents contravened the law as outlined below and imposed the following penalties:
• Michael Powell: $1000 for contravening s170MN of the Workplace Relations Act
1996 (WR Act) in the first strike and $2500 for breaching s38 of
the Building and
Construction Industry Improvement Act 2005 (BCII Act) in the second strike.
Total = $3500;
• CFMEUW: $12,000 for breaching s38 of the BCII Act in the second strike;
• Joseph McDonald: $1500 for contravening s170MN of the WR Act in the first
strike; and
• CFMEU: $1000 for contravening s170MN and $5000 for failure to follow
disputes procedures in the first strike and $12,000 for contravening s38 of the
BCII Act during the second strike Total = $18,000
2. Total penalties imposed on all respondents = $35,000
3. The ABCC filed proceedings in the Federal Court at Perth on 30 November 2006.
4. A penalty hearing was held before Justice Dowsett on 12 and 13 February 2008. The parties agreed to a statement of facts prior to the penalty hearing. Part of the agreement was that there be no order as to costs.
5. A determination on penalty was left to the court’s discretion.
6. The statement of agreed facts contained the following admissions:
• Mr Powell admitted contravening s170MN of the WR Act in respect of the first
strike and s38 of the BCII Act in respect of the second strike;
• The CFMEUW admitted contravening s38 of the BCII Act in respect of the
second strike;
• Mr McDonald admitted contravening s170MN of the WR Act in respect of the
first strike; and
• The CFMEU admitted contravening s170MN of the WR Act and failing to comply
with the disputes procedures in respect of the first strike and s38 of the BCII Act
in respect of the second strike.
Background
As outlined in statement of agreed facts filed in court
First strike
7. On 17 August 2005, CFMEU WA divisional branch Assistant Secretary Joseph McDonald and organiser Michael Powell visited a nickel mine construction site in Ravensthorpe, WA.
8. During that morning Mr McDonald and Mr Powell held a meeting with CFMEU members who were employed by contractors on the site. The meeting voted to go on strike for 48 hours in support of a range of claims.
9. About 400 employees subsequently left work and did not return for two days. Five of the contractors on site had had only just finalised certified agreements with the CFMEU.
10. The claims related to such matters as:
• a shed for union delegates;
• dust;
• “all-in” payments;
• the withdrawal of overtime in inclement weather;
• superannuation;
• the shop in the vicinity of the site; and
• the reinstatement of two employees who had been dismissed.
11. Under the certified agreements, all disputes should have been dealt with under the dispute settlement procedure which prohibited industrial action until the procedure had been followed.
Second strike
12. On 24 August 2005, Mr Powell conducted a meeting of employees of a contractor at the site. At the meeting, it was decided that the contractor’s employees would go on strike for 24 hours. On 25 August 2005, about 20 of the employees went on strike for 24 hours. The purpose of the second strike was to support the claim that the contractor reinstate the two employees who had been dismissed.