2009 court update – the year in review
Judgments over the previous year show the ABCC means business
The ABCC continued to experience success in the courts in 2009. It won 83 per cent of its cases resulting in total penalties of almost $600,000.
This edition of Industry Update will reflect on the ABCC’s record in the courts last year and the message this holds for the industry.
The ABCC educates building industry participants about the workplace relations laws that apply to them and investigates and prosecutes breaches of those laws.
Of the 24 judgments handed down in ABCC-initiated proceedings in 2009, the ABCC was successful in 20. The ABCC withdrew its applications on two occasions and proceedings were dismissed twice.
‘This record is reassuring,’ ABC Commissioner John Lloyd said.
‘Our success rate shows that ABCC employees, from investigators to lawyers and corporate staff, are doing their jobs thoroughly and effectively.
‘The message that emerges is clear: people in the industry should realise that if you don’t abide by the law you are open to severe consequences.’
The courts have echoed the sentiments of the building and construction industry and the wider community. Intimidation, bullying, harassment and standover tactics will not be tolerated.
Detailed below are examples of the incidents of unlawful conduct that continue to harm the building and construction industry. They are taken from ABCC cases that were before the courts in 2009.
Information about workplace relations laws in the building and construction industry can be obtained by calling the ABCC hotline on 1800 003 338 or sending an online enquiry via the ABCC website.
Unlawful strikes burden industry
‘[Johnston’s] conduct was wilful, arrogant and insouciant as to his proper obligations, both as an employee and as a shop steward.’
‘…it is important that it be brought home to the CFMEU that contravention of the provisions of the BCII Act as has occurred in this instance must not occur.’
Federal Magistrate Burchardt, Cozadinos v CFMEU & Johnston
The incidents of unlawful industrial action in the building and construction industry, particularly in Victoria, are unacceptable. More than half of the legal proceedings the ABCC launched in 2009 involved unlawful strikes.
It is important to remember that building and construction industry workers have a right to strike in certain circumstances, such as when there is an imminent risk to their health and safety. The strikes the ABCC prosecutes are generally prompted by industrial motives and are organised because unions are trying to force contractors to make a union agreement, hire certain people because they are union members or fire certain people because they are not.
These strikes disrupt projects and are often costly to contractors. If the project is a public one, the wider community and taxpayers bear the cost.
Penalties issued by the courts over the past year reflect the seriousness of this type of contravention.
In May 2009, the Federal Magistrates’ Court in Melbourne penalised the CFMEU $5000 and shop steward Craig Johnston $4600 for taking unlawful industrial action at a site in Waurn Ponds, Victoria. Mr Johnston had removed the keys from a forklift to prevent a subcontractor’s delivery truck being unloaded.
In August and September 2009 the Federal Magistrates’ Court and the Federal Court in Melbourne imposed penalties totalling $105,000 for numerous instances of unlawful industrial action at the Maryvale Paper Mill expansion project in Victoria. The project was plagued by a series of industrial disruptions between July 2007 and February 2008, leading to ABCC proceedings against the AWU, CEPU, AMWU and three union officials.
Further information:
Fact Sheet: Unlawful industrial action
Smaller operators more exposed to coercion
‘[Nesbit’s] threats involved threatened abuse of power in order to cause ongoing disruption to Budget Shopfitters’ business undertaking through industrial action, and to compel the expenditure of substantial amounts of money.’ ‘… the conduct was quite extreme and completely unacceptable. The Court must demonstrate its disapproval of that conduct by fixing a penalty which will operate as a deterrent to others…’
Dowsett J, Wilson v Nesbit and CFMEU
Smaller subcontractors are the victims in many ABCC legal proceedings relating to coercion. They are more vulnerable to coercive pressure as they lack the economic capacity to resist it. These cases often involve unlawful industrial action.
A typical coercion scenario that smaller subcontractors encounter will involve a union official demanding its employees become union members and/or it make an agreement with the union. In the past, union officials have resorted to threats of ‘shutting down’ sites and ‘blackballing’ subcontractors or ‘making their life a misery’ as retribution for not meeting union demands. When this occurs subcontractors can find themselves wedged between the ambitions of the union and the requirements of the head contractor.
This was the case in Wilson v Nesbit and CFMEU, in which a union organiser attempted to coerce a business to enter a workplace agreement (see ‘Court round up’ below).
In Williams v CFMEU & Mates CFMEU organiser Robert Mates was found to have organised and threatened to organise work stoppages at a construction site in Alphington, Victoria in an attempt to coerce a developer to employ another OHS representative. In May 2009 the Federal Court imposed penalties totalling $115,000, which were reduced to $42,500 on appeal.
Further information:
Fact Sheet: Unlawful Coercion
Freedom of association – it’s your right
‘A union is free to adopt any policy which its elected officials and members consider to be appropriate from time to time. The union is also free to pursue and implement such policies by lawful means. What is not permissible is the pursuit of policy objectives by means that are unlawful.’
Full Court of the Federal Court,
Draffin v CFMEU, Allen, Benstead, Oliver & Walton Constructions
Everyone who works in Australia’s building and construction industry must respect an individual’s right to freedom of association.
We all have the right to decide whether or not we want to join a union or employer association. It is against the law to:
- tell a person they don’t have that right
- pressure a person to join a union or employer association
- prejudice a person’s employment on the basis of whether or not they are a member of a union or employer association, or
- take industrial action with the intent of forcing someone to join a union or employer association or make an agreement with a union.
The issue of freedom of association goes to the heart of many industrial disputes in the building and construction industry.
It is often assumed that unions are the only offenders when it comes to such breaches but this is not the case. The ABCC has also prosecuted employers and managers for freedom of association breaches.
Contractors have an obligation to ensure their employees are aware that everyone in the industry has the right to freedom of association.
In Wotherspoon v Brown, a senior employee of a developer was found to have contravened the freedom of association of two new employees by telling them they were obligated to join a union. The senior employee was penalised $4000, half suspended for four months.
More severe penalties were issued by the Federal Court in Draffin v CFMEU, Allen, Benstead, Oliver & Walton Constructions. In this case both a union and a head contractor were found to have contravened the right of a subcontractor’s employees to choose whether or not to join the union. The CFMEU and three of its officials were penalised a total of $82,750 for coercing the head contractor to discriminate against the subcontractor because its employees were on AWAs. The head contractor was earlier penalised $50,000 with half suspended for 12 months for discriminating against the subcontractor.
Further information:
Fact sheet: Freedom of Association in the Building and Construction Industry
Court round up – latest cases and judgments
Legal Proceedings
Officials allegedly initiate strike to protest sacking of ‘peggy’
CFMEU official Danny Berardi became a respondent to a new ABCC proceeding on 22 January 2010.
On 6 October 2008 the head contractor on the B Central student apartments site in Hawthorn dismissed the site ‘peggy’ for poor work performance.
It is alleged that on 7 October 2008 Mr Berardi attended the site and instructed the employees to stop work until the issue could be sorted out. The employees stopped work and left the site.
The first directions hearing is scheduled for 12 March 2010 in the Federal Magistrates’ Court in Melbourne.
ABCC media backgrounder: Hardwick v Berardi & CFMEU Union official to face court over alleged right of entry breach in Queensland
On 10 December 2008 CFMEU official Wayne Carter provided an entry notice to Procast Australia Pty Ltd site in Heathwood, Queensland, which claimed to conform with the requirements of the WR Act.
Mr Carter’s notice was not valid because none of the employees on the site were union members and the union was not a party to the workplace agreement.
It is alleged Mr Carter attended the site the following day and attempted to talk to the workers. After being asked to leave, Mr Carter claimed to be there on safety grounds. He continued to refuse to leave and is then alleged to have assaulted a Procast employee twice.
A directions hearing is scheduled for 4 March 2010 in the Federal Magistrates Court in Brisbane.
ABCC media backgrounder: Thompson v Carter & CFMEU Joe McDonald accused of illegal strike action
The ABCC alleges that CFMEU WA assistant secretary Joe McDonald has breached s.38 of the BCII Act by instructing employees to stop work.
On 25 February 2008 Mr McDonald told Diploma’s site manager on the Herdsman Business Park project that there was an agreement between Diploma and the CFMEU and that all workers needed to be members of the union.
It is alleged Mr McDonald told a meeting of workers that the site was going to be closed down because there were not enough amenities or toilets and the scaffolding was not safe.
The workers remained off site for the remainder of the day.
The proceeding was filed in the Federal Magistrates Court in Perth on 6 January 2010 and the first directions hearing is scheduled for 12 February 2010.
ABCC media backgrounder: Radisich v McDonald & CFMEU
Improper use of permit alleged at Melbourne Airport car park site
The ABCC alleges that CFMEU officer Mark Travers acted in an improper manner while exercising his rights as a permit holder when he attended the Tullamarine Airport Multilevel Car Park construction project at Melbourne Airport, Victoria on 24 February 2009.
Mr Travers allegedly attended the site without authorisation from or notice to head contractor John Holland and convened an unauthorised meeting with employees.
Mr Travers was asked to leave the site by a site manager. Mr Travers allegedly refused to leave and directed abuse and profanities toward management.
A directions hearing for this matter is scheduled for 19 April 2010.
ABCC media backgrounder: Hardwick v CFMEU & Travers
Judgments
Queensland union and official penalised almost $50,000
On 23 December 2009 the Federal Court in Brisbane ordered the CFMEU and official Tim Nesbit to pay penalties totalling $49,000 after the parties reached a settlement with the ABCC.
Nesbit and the union admitted they coerced a subcontractor at its Brendale site to terminate its existing workplace agreement and replace it with a CFMEU agreement, make further OHS improvements and ensure all employees become union members.
Mr Nesbit threatened that if the subcontractor did not give in to the demands it would be ‘blackballed’ and subject to an audit which would cost between $50,000 and $100,000.
ABCC media statement: Wilson v CFMEU & Nesbit Victorian CFMEU official fined for unlawful industrial action
CFMEU official Danny Berardi was ordered to pay $1000 and his union $7500 on 16 December 2009 after Mr Berardi admitted to taking unlawful industrial action at the Bialik College site in Hawthorn.
Mr Berardi directed employees of three subcontractors at the site not to perform any more work because the head contractor did not have a workplace agreement with the CFMEU.
ABCC media statement: Gregor v CFMEU & Berardi