ABCC v CFMEU, CFMEUW & McDonald

Applicant: Australian Building and Construction Commissioner

Respondent(s): Construction Mining Forestry & Energy Union (CFMEU), CFMEU(WA), Joseph McDonald

Date filed: 13 January 2010

Court Findings:

The Federal Court of Australia found that Joe McDonald and the CFMEU contravened s38 of the BCII Act by the actions of McDonald in visiting the City Square Project building site in Perth on 15 July 2010.  After McDonald addressed the employees, they left the site and failed to return for the remainder of the day. Brookfield Multiplex Constructions was the head contractor.

On 23 July 2010, Barker J made the following declarations:

  • That the industrial action undertaken on 15 July 2009 by building employees engaged on the City Square Project conducted by Brookfield Multiplex Constructions Limited was unlawful industrial action which involved a contravention of s 38 of the BCII Act;

  • That by his conduct on that day, the third respondent, McDonald  was involved in the contravention within the meaning of s 48(2)(a) and (c) of the BCII Act by the operation thereof is treated as having himself contravened s 38 of the BCII Act;

  • That by the operation of s 69(1)(b) of the BCII Act, the conduct of the third respondent is taken also to be the conduct of the first respondent;

Barker J found that the conduct of Mr McDonald was not to be taken to be the conduct of the CFMEUW and ruled the second respondent does not incur any accessorial liability under s 69(1)(b) of the BCII Act. Accordingly, the court ordered the application against the second respondent be dismissed.

The ABCC alleged in its statement of claim that McDonald opportunistically induced workers into taking strike action for 24 hours calculated to make a subcontractor sign a written safety commitment other subcontractors had signed the previous day.

Court Outcome:

Barker J imposed a penalty of $8,000 on Joe McDonald and $40,000 on the CFMEU for contravention of s38 of the BCII Act by the actions of McDonald.

On 24 September 2010 the respondents appealed the penalties.

On 8 March 2011 The Full Court dismissed the appeal with the appellant to pay ABCC's costs.

view the decision of the primary judge at: http://www.austlii.edu.au/au/cases/cth/FCA/2010/784.html

view the appeal at: http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/29.html