Significant outcomes in education, assistance and advice

In the 2016–17 reporting period, the agency achieved strong outcomes in education, assistance and advice. The agency achieved these outcomes by responding to enquiries, delivering presentations to building industry participants, visiting building and construction worksites, and providing information and education materials online.

 

Enquiries

The ABCC receives enquiries from building industry participants through a range of sources, and for many reasons. Responding to enquiries is a key way that the agency provides advice and assistance – in most cases at the time of the first contact.

As table 1 shows, in the 2016–17 reporting period, a total of 5,882 enquiries were received by the agency – the highest number in the history of the ABCC and its predecessor agencies. The majority of these enquiries (60%) were received through the agency's 1800 hotline. Of those calls, 96% were answered by agency staff within 60 seconds.

More than 1,800 enquiries were received through online sources including the agency's web enquiry form and via email.

Building industry participants contacted investigators directly on 419 occasions seeking advice or assistance.

#Table 1: Number of enquiries by enquiry method for the 2015–16 and 2016–17 reporting periods
Method of enquiry 2015–16 2016–17
Hotline 2,285 3,524
Online 672 1,859
Direct 469 419
Referral 98 41
Other 40 39
Total 3,564 5,882

Along with a greatly increased volume of overall enquiries, the 2016–17 reporting period saw a dramatic increase in the number of enquiries related to the Building Codes. As table shows, the agency received 3,624 enquiries about Building Codes – an increase of 170% from the previous reporting period. The majority of these Building Code enquiries related to Building Code assessments, particularly following the introduction of the 2016 Code (see 'Significant outcomes in compliance' for further information on Building Code assessments).

#Table 2: Number of enquiries by main topic of enquiry for the 2015–16 and 2016–17 reporting periods
Main topic of enquiry 2015–16 2016–17
Code 1,344 3,624
Code assessment 558 1,562
General Code information 742 1,182
Code advice 818
Notice of Code breach 39 55
State Code information 5 7
Workplace laws – building work 815 935
Right of entry 397 364
Unlawful industrial action 180 214
Wages and entitlements1 136
Coercion 126 107
Freedom of association 95 69
Independent contractor/sham contracting* 28
Strike pay 17 17
Other laws – Non designated** 453 512
Not relevant to the Building Industry 239 275
Workplace laws – Non building work*** 121 117
General agency information and activities 212 299
Other1 380 120
Total 3,564 5,882

* Prior to 2 December 2016 the agency's case recording system did not distinguish whether enquiries about wages and entitlements or independent contractors/sham contracting were related to building work. These enquiries that were received prior to 2 December 2016 are represented as 'other' for the purposes of this Annual Report. Enquiries related to wages and entitlements or independent contractors/sham contracting that relate to building work and were received on or after 2 December 2016 are represented in their respective categories under 'Workplace laws – building work' for the purposes of this Annual Report.

** Enquiries classified as 'Other laws – Non designated' include laws that are outside of the agency's jurisdiction, for example, those related to domestic building work, taxation, competition or criminal laws.

*** Enquiries classified as 'Workplace laws – Non building work' include workplace laws that are outside of the agency's jurisdiction, for example, those related to enterprise agreements that are relevant to FWC, and those related to unfair dismissal or unlawful termination that are relevant to FWC or FWO.

The increase in the volume of enquiries was concentrated around the time of the agency's transition from FWBC to the ABCC. Against this backdrop of greatly increased enquiry volume and new areas of responsibility, the agency achieved a result of 70% against the KPI target of 75% of clients satisfied or highly satisfied with the quality and timeliness of advice and assistance provided. This result was determined through survey responses sought and collated by an independent third-party provider.

There are several key factors to consider in relation to this result:

  • While the percentage of clients who were satisfied or highly satisfied was lower in 2016–17 than in 2015–16, the rate of clients who were dissatisfied or highly dissatisfied did not increase. The majority of clients who were not satisfied or highly satisfied in 2016–17 reported that they were neither satisfied nor dissatisfied.
  • The period with the lowest rate of satisfaction, the third quarter of 2016–17, followed the agency's transition from FWBC to the ABCC. Throughout this period the agency's incoming enquiry volume was more than 100% greater than the same quarter in the previous reporting period.
  • In order to ensure that stakeholders received comprehensive and consistent information on the agency's new areas of responsibility, particularly the 2016 Code, the ABCC made an internal policy decision to initially provide this information in writing rather than over the 1800 hotline. The ABCC acknowledged and accepted the risk that this decision may lead to a decrease in satisfaction. Following the roll-out of training to agency operational staff, this internal policy has now been rescinded and advice is again provided at the first point of contact where possible.

Survey results for the latter part of 2016–17 indicate that client satisfaction is on a positive trajectory. The agency expects this to continue into the new financial year and return to the high levels of satisfaction reported historically.

 

Presentations

Presentations are delivered by operational staff, middle managers and members of the senior executive team. The purpose of the presentations is to educate building industry participants about their rights and responsibilities under workplace relations laws and Building Codes. In the reporting period, key presentation topics included:

  • general information about the agency and its role in the industry;
  • targeted presentations at TAFEs and other registered training organisations, which were aimed at educating vulnerable workers like apprentices, particularly in regard to their rights and entitlements at work;
  • general information about compliance with Building Codes; and
  • the new responsibilities of government agencies that procure Commonwealth funded construction work (funding entities) and contractors that carry out building work under the 2016 Code.

As table shows, in the 2016–17 reporting period, presentations were delivered on 227 occasions to a total audience of more than 5,500 building industry participants. This represented a 21% increase in presentations and an 86% increase in audience numbers from the previous reporting period. This was also the highest number achieved in each category in the history of the ABCC and its predecessor agencies.

#Table 3: Total number of presentations delivered and number of attendees for the 2015–16 and 2016–17 reporting periods
Presentations/attendees 2015–16 2016–17
Presentations 187 227
Attendees 2,984 5,552

The number of presentations delivered far exceeded the KPI target of 125 presentations while the agency focused on proactive engagement with the industry throughout the transition from FWBC to the ABCC.

Of the 136 presentation organisers surveyed, 99% said that they were satisfied or highly satisfied with the quality of the engagement.

 

Site visits

Site visits are a key opportunity for investigators to engage directly with building industry participants, and to provide education, assistance and advice. As table shows, in the 2016–17 reporting period, the agency visited building and construction worksites and offices on 1,058 occasions.

#Table 4: Number of site visits by state for the 2015–16 and 2016–17 reporting periods
State/territory Number of site visits 2015–16 Number of site visits 2016–17
WA 413 303
NSW 194 173
QLD 123 143
SA 99 135
NT 198 126
VIC 196 122
TAS 84 35
ACT 65 21
Total 1,372 1,058

 

Communicating with the industry

In addition to engaging with the industry on building and construction worksites, the ABCC recognises the vital role the media plays in informing industry participants of the agency's activities, explaining key outcomes and improving understanding of Australian workplace laws. The ABCC Media Unit responds to requests for advice and information from journalists and industry writers and proactively engages with this sector.

The agency also engages with the media and other industry stakeholders using a variety of published materials:

  • Media releases are issued when significant events occur, such as when legal proceedings are initiated and finalised, sanctions are imposed, or when important new material is published.
  • Industry Update newsletters are emailed to subscribers bi-monthly and provide an update on the latest activities of the ABCC, industry trends and emerging issues.
  • E-Alerts are published on priority topical issues in the industry.

Table shows the number of communications activities conducted by each category. Each of these communications is available on the news and media section of the ABCC website,www.abcc.gov.au/news-and-media.

#Table 5: Number of communications activities by category for the 2015–16 and 2016–17 reporting periods
Type of activity 2015–16 2016–17
Media release 58 25
E-Alert 15 16
Industry Update 6 6

The agency also published one edition of Enterprise Agreement News, which is a targeted e-newsletter for contractors and other stakeholders who have a particular interest in enterprise agreement assessments. See 'Educating the industry on the 2016 Code' in the following section for further information.

 

Significant outcomes in compliance

In the first half of the 2016–17 reporting period, the agency focused on promoting and monitoring compliance with the Building Code 2013. When the ABCC commenced on 2 December 2016 and the 2016 Code came into effect, the ABCC broadened its focus to include education on, and implementation of, the 2016 Code.

New requirements of the 2016 Code

The 2016 Code brings to the ABCC a number of new roles and responsibilities in addition to the existing roles and responsibilities related to the Building Code 2013.

Since the commencement of the 2016 Code, the agency's expanded remit includes:

  • assessing draft and FWC approved (registered) enterprise agreements for compliance with the 2016 Code;
  • assessing individual agreement clauses for compliance with the 2016 Code;
  • assessing and approving Workplace Relations Management Plans;
  • collecting a range of information from funding entities, including details of contractual agreements to use only products that comply with relevant Australian standards;
  • monitoring code covered entities' requirement to advertise for Australian citizens and permanent residents first and demonstrate that no Australian citizen or permanent resident is suitable for the job before employing a visa holder;
  • monitoring compliance with all applicable laws and 2016 Code requirements relating to security of payments by code covered entities; and
  • pursuing breaches of certain laws as Code breaches, including Workplace Health and Safety, competition, migration, and designated building laws.

In the 2016–17 reporting period, the agency worked to implement structures and processes to manage each of these new requirements.

 

Educating the industry on the 2016 Code 

The agency has made a significant effort to educate the industry on the requirements of the 2016 Code. The ABCC website contains a large amount of information, resources and tools to assist contractors, funding entities, and other building industry participants to understand the requirements of the 2016 Code. This website material includes:

  • guidance material in the form of advice on more than 1,600 examples of enterprise agreement clauses that have been assessed by the ABCC for their compliance with the 2016 Code;
  • fact sheets, implementation tables and frequently asked questions (FAQs);
  • model clauses for use by funding entities and funding recipients in tender and contract documentation; and
  • Enterprise Agreement News, which is also emailed directly to subscribers.

In addition to the materials published on the ABCC's website, the agency has prioritised direct contact with code covered entities, government agencies, and employer and employee associations. See 'Presentations' for further information.

 

Assessment of enterprise agreements

During the 2016–17 reporting period, the agency was responsible for providing advice on the compliance of draft and FWC approved (registered) enterprise agreements with the Building Codes.Table shows the number of agreements received and the number assessed against each Code.

From the start of the reporting period until 1 December 2016, the agency provided advice on the compliance of agreements with the Building Code 2013. When the 2016 Code commenced on 2 December 2016, the agency stopped assessing against the Building Code 2013 and instead provided advice on compliance with the 2016 Code.

In the 2016–17 reporting period, the agency received a total of 665 draft or FWC approved (registered) enterprise agreements for assessment against the Building Code 2013. The agency provided assessments against the Building Code 2013 on 433 agreements. Records relating to the 295 agreements that had not yet been assessed against the Building Code 2013 were closed because the assessments were no longer required.

From 2 December 2016 to 30 June 2017, the agency received a further 1,371 draft or FWC approved (registered) enterprise agreements for assessment of the substance of the agreement against the 2016 Code. At the close of the reporting period, the agency had assessed 871 of those agreements.

#Table 6: The number of agreements received and assessed during the 2016–17 reporting period
Building Code Agreement status 2016–17
2013 Received 665
Assessed 433
Closed (assessment not required) 295
2016 Received 1,371
Assessed 871

The agency also issued letters of compliance for 1,342 agreements or award arrangements deemed compliant under the 2016 Code before the amendment to the Code in February 2017.

There is no comparative data with the previous reporting period because the role of assessing enterprise agreements against the Building Code 2013 was transferred from the Department of Employment to FWBC on 6 May 2016. The role of assessing enterprise agreements against the 2016 Code is a new function that commenced on 2 December 2016.

 

Audits and inspections

Building Code audits and inspections (compliance activities) proactively monitor the on-site behaviour and business systems of code covered entities, using voluntary rectification or sanction to influence contractors to adopt compliant workplace practices.

Building Code inspections are undertaken without notice and aim to establish the level of on-site compliance with relevant Building Codes. Inspection outcomes are one of a number of factors the agency considers when planning Building Code audit activity.

Building Code audits are a more formal, in-depth compliance activity, aimed at comprehensively assessing a contractor's compliance with relevant Building Codes. Audits can be targeted at specific issues or be general in nature. Companies that have agreed to voluntary rectification are also considered for follow up compliance activities to assess whether agreed measures have been implemented.

In the 2016–17 reporting period, the agency commenced 45 audits and 307 inspections. Table shows the number of these compliance activities broken down by state. This total of 352 compliance activities was 52 more than the KPI target of 300.

#Table 7: Number of Building Code compliance activities commenced by state for the 2015–16 and 2016–17 reporting periods
State 2015–16 2016–17
WA 50 69
QLD 58 64
VIC 126 63
NSW 98 47
SA 25 41
ACT 67 25
TAS 48 25
NT 31 18
Total 503 352

Over the same period, the agency finalised 62 audits, some of which were commenced in the 2015–16 reporting period. There were 47 audits in which potential Code issues were identified. In the case of all but one contractor, these issues were finalised with contractors agreeing to voluntary rectification measures. The following section on an exclusion sanction provides further information.

 

Exclusion sanction

The ABCC is committed to working with code covered entities to ensure their compliance with relevant Building Codes. Where non-compliance with Building Codes is identified, the agency seeks, where appropriate, to provide education and opportunities for the entity to rectify issues voluntarily.

In line with paragraph 6.5 of the Building Code 2013 Supporting Guidelines, issued in April 2016, where a building contractor or building industry participant has failed to comply with the Building Code 2013 and the failure is not, or cannot be, satisfactorily rectified, the failure can be referred to the Minister for Employment with recommendations that a sanction should be imposed.

In the 2016–17 reporting period the Commissioner recommended to the Minister that an exclusion sanction be imposed on J. Hutchinson Pty Ltd (Hutchinson Builders).

The Minister found that Hutchinson Builders had:

  • breached paragraph 7(b) of the Building Code 2013 by failing to require compliance with the Building Code 2013 from all subcontractors before doing business with them;
  • breached paragraph 13(b) of the Building Code 2013 by engaging in activity that attempts to unduly influence a subcontractor or supplier to have particular workplace arrangements in place;
  • breached subparagraph 15(1)(b)(i) of the Building Code 2013 by not adopting policies that ensure that persons are free to become, or not become, members of industrial associations; and
  • breached paragraph 15(2)(b) of the Building Code 2013 by allowing a 'no ticket, no start' sign to be displayed on a worksite.

The Minister imposed an exclusion sanction for the three-month period of 1 April–30 June 2017, which excluded Hutchinson Builders from submitting expressions of interest for, tendering for or being awarded Commonwealth funded building work during the period of exclusion.

 

Significant outcomes in enforcement

In the 2016–17 reporting period, the agency investigated and, where necessary, pursued civil penalty litigation in the courts for potential breaches of workplace relations laws.

Investigations

Table shows the number of investigations commenced and finalised during the 2015–16 and 2016–17 reporting periods, as well as those continuing at the end of each period. In the 2016–17 reporting period, the agency commenced 142 investigations into suspected breaches of workplace laws.

#Table 8: Investigations by status for the 2015–16 and 2016–17 reporting periods
Investigation status 2015–16 2016–17
New investigations commenced 130 142
Investigations finalised 167 154
Investigations continuing at end of period 48 52

 

As table shows, the new investigations commenced were primarily in Victoria, New South Wales and Queensland.

#Table 9: New investigations commenced by state for the 2015–16 and 2016–17 reporting periods
State 2015–16 2016–17
VIC 28 41
NSW 27 36
QLD 35 28
TAS 10 11
WA 9 11
SA 7 10
NT 10 4
ACT 4 1
Total 130 142

In the 2016–17 reporting period, the agency investigated 467 alleged contraventions of Commonwealth workplace laws. Table 10 shows these by type of contravention.

#Table 10: Investigations by type of contravention for the 2015–16 and 2016–17 reporting periods
Type of contravention investigated 2015–16 2016–17
Freedom of association 152 113
Coercion 104 111
Right of entry 179 105
Unlawful industrial action 92 72
Wages and entitlements 1 35
Misclassification/sham contracting 16
Strike pay 23 15
Total 551 467

 

Use of compliance powers

When investigating a complaint, investigators will use all avenues available to them to obtain information voluntarily. If an investigator has exhausted all avenues available to obtain information voluntarily, the Commissioner may consider using compulsory examination powers under the BCIIP Act.

The powers can be used where the Commissioner believes on reasonable grounds that a person:

  • has information or documents relevant to an investigation by an inspector into a suspected contravention, by a building industry participant, of the BCIIP Act or a designated building law; or
  • is capable of giving evidence that is relevant to such an investigation.

When exercising compulsory examination powers, the Commissioner may require the person to:

  • give information to the Commissioner;
  • produce documents to the Commissioner; or
  • attend before the Commissioner and answer questions relevant to the investigation.

Compulsory examination powers have an extensive range of safeguards associated with their use.

The Commissioner is required to make an application to a Presidential Member of the Commonwealth Administrative Appeals Tribunal in order to exercise the examination powers.

As soon as practicable after an examination of a person is completed, the Commissioner must give the Commonwealth Ombudsman:

  • a report about the examination;
  • a video recording of the examination; and
  • a transcript of the examination.

The Commonwealth Ombudsman must then review the exercise of compulsory examination powers by the Commissioner and any person assisting the Commissioner, and may do anything incidental or conducive to the performance of that function.

The Commonwealth Ombudsman must also, as soon as practicable after the end of each quarter of each financial year, prepare and present to the Parliament a report about examinations conducted during that quarter. The report must include the results of reviews conducted during that quarter.

A person who is being examined by the Commissioner is entitled to:

  • if he or she so chooses, be represented at the examination by a lawyer of his or her choice; and
  • be paid fees and allowances for reasonable expenses incurred in attending the examination.

Similar powers were available to the FWBC Director under theFair Work (Building Industry) Act 2012(FWBI Act), and similar safeguards on their use existed.

Compulsory examination powers are used only as a last resort. In the 2016–17 reporting period, the agency issued seven examination notices and exercised its compulsory examination powers on five occasions. Each of these examinations was conducted under the FWBI Act. Of those witnesses examined, two chose to have legal representation.Table 11 and Table 12 show the outcomes of these examinations and the type of examinee.Table 13 shows the examination notices issued and examinations conducted by state.

#Table 11: Outcomes of examinations undertaken in 2015–16 and 2016–17, as at 30 June 2017
Outcome of examination 2015–16 2016–17
Investigation closed with no proceedings issued 2 3
Investigation ongoing 6 2
Proceedings commenced, case currently before the courts 9
Proceedings finalised
Total 17 5

 

#Table 12: Type of examinee for examinations conducted in the 2015–16 and 2016–17 reporting periods
Type of examinee 2015–16 2016–17
Management 14 3
Employee 2 2
Union official 1
Total 17 5

 

#Table 13: Examination notices issued and examinations conducted by state in the 2015–16 and 2016–17 reporting periods
State/territory Examination notices issued Examinations conducted
  2015–16 2016–17 2015–16 2016–17
VIC 6 7 6 5
QLD 9 7
TAS 2 2
NSW 1
SA 1
ACT
NT
WA
Total 17 7 17 5

 

Penalty proceedings

In the 2016–17 financial year, the agency initiated eight proceedings in the courts. Each of these proceedings was initiated prior to the ABCC's commencement on 2 December 2016.

Since 2 December 2016, the agency's resources have been focused on the re-establishment of the ABCC. Despite this focus on the implementation of the ABCC, the agency has maintained an extensive litigation workload carried over from FWBC. At the close of the 2016–17 reporting period, the agency had 49 matters before the courts.

Table 14 shows that consistent with previous reporting periods, the primary allegations of the eight proceedings commenced related to coercion, right of entry, freedom of association and unlawful industrial action breaches.

#Table 14: Number of proceedings commenced by nature of allegation for the 2015–16 and 2016–17 reporting periods
Nature of allegation 2015–16 2016–17
Coercion 11 3
Right of entry 8 2
Freedom of association 8 2
Unlawful industrial action 7 1
Total 34 8

Table 15 shows the result of the finalised proceedings. The agency finalised 28 matters – the highest number finalised in a reporting period since 2011–12.

#Table 15: Result of finalised proceedings for FY2016 and FY2017
Result of finalised proceedings 2015–16 2016–17
Successful 21* 20**
Unsuccessful 1 5***
Discontinued 3
Total 22 28

*Includes three matters currently under appeal
**Includes three matters currently under appeal
***Includes three matters currently under appeal

As table 16 shows, in the reporting period, the agency was awarded $2,146,525 in penalties. This result marks the sixth occasion that penalties awarded in a financial year have exceeded $1 million, and the third occasion that penalties have exceeded $2 million, in the history of the ABCC and its predecessor agencies.

#Table 16: Penalties awarded in the 2015–16 and 2016–17 reporting periods
Type of penalty 2015–16 2016–17
Unlawful industrial action $146,600 $1,157,150
Coercion* $576,275** $710,000
Right of entry*** $915,050 $144,200
Freedom of association $133,500 $135,175
Wages and entitlements $19,250
Other $12,000
Total penalties $1,802,675 $2,146,525
Total penalties suspended $98,000
Total penalties subject to appeal as at 30 June 2017 $78,000 $374,000

*$78,000 in penalties currently under appeal from 2015–16, and $242,000 in penalties currently under appeal from 2016–17, relate to coercion matters

**Coercion penalties of $23,500 handed down in 2015–16 were successfully appealed by the ABCC, with the penalty amount increased to $242,000 in 2016–17.

***$132,000 in penalties currently under appeal from 2016–17 relate to right of entry matters.

 

Applications, submissions and interventions

Under the BCIIP Act, the Commissioner may intervene in court proceedings and make submissions in FWC proceedings. The Commissioner will consider intervening or making submissions in proceedings that involve building work or a building industry participant.

As table 17 shows, in the 2016–17 reporting period, the agency made three submissions on permit applications. The agency did not intervene in any matters.

#Table 17: Submissions and applications by category for the 2015–16 and 2016–17 reporting periods
Category 2015–16 2016–17
Submissions on permit applications 13 3
Applications for revocation of permit 11
Total 24 3

 

Injunctions

Injunctions are discretionary orders of courts. The ABCC sought and was granted one injunction in 2016–17.

On 28 September 2016, the ABCC commenced proceedings against the CFMEU and seven of its organisers alleging various contraventions of the Fair Work Act arising from conduct (comprising coercion, adverse action and unlawful industrial action) at nine construction sites.

On 29 September 2016, the Court made a number of interlocutory orders sought by the ABCC, including that until the determination of the proceeding, the CFMEU and the individual respondents be restrained from organising, encouraging, aiding or assisting in any stoppage, disruption or interference of work at the relevant sites.

 

Significant cases

The following examples of significant cases that were finalised in the 2016–17 reporting period are illustrative of the continuing serious unlawful conduct within the building and construction industry.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union[2017] FCA 491 (Perth Children's Hospital)

On 11 May 2017, the Federal Court penalised the CFMEU and seven of its officials, including senior union leaders Dave Noonan (National Secretary), Mick Buchan (Western Australia State Secretary) and Joe McDonald (Divisional President), for unlawful conduct which halted work at the $1.2 billion Perth Children's Hospital project.

Penalties totalling $277,000 were imposed for unlawful blockades of the children's hospital site on four separate days between January and July 2013. On one occasion, around 400 people blockaded the main entrance, preventing a large concrete pour involving 45 trucks. In a separate blockade, CFMEU official Tawa Harris admitted to attempting to prevent workers from entering the site by physical restraint.

 

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union[2017] FCAFC 53 (Perth Airport)

On 29 March 2017, the Full Court of the Federal Court significantly increased penalties against the CFMEU and a number of its senior officials after they blocked construction work on the $80 million Perth International Airport Arrivals Expansion Project.

The CFMEU and six of its officials, including Divisional President Joe McDonald, Western Australia State Secretary Mick Buchan and Assistant Secretary Cam McCullough, were given penalties totalling $242,000 for the 2013 blockade.

In an earlier decision handed down in May 2016, the Federal Court had penalised the union and its officials a total of $21,225 for the unlawful conduct, which saw approximately 100 protestors prevent workers from accessing the site.

The increased penalties were the result of a successful appeal of the decision by the ABCC.

The Full Court accepted the ABCC's submissions that the initial penalties were "manifestly inadequate" and that the primary judge had failed to take into account the significant prior histories of several of the respondents in contravening workplace laws. This included a history of 53 proven contraventions of industrial laws by Mr McDonald and six by Mr Buchan. Other respondents in the case had also been penalised on multiple occasions.

The Full Court's decision saw penalties against the CFMEU increased to $195,000, Mr McDonald $17,500, Mr Buchan $9,000, Vinnie Molina $9,000, Peter Joshua $5,000, Mr McCullough $2,500 and Tawa Harris $4,000.

In the majority decision, Justices Dowsett and Rares made the following comments about the CFMEU's conduct and its prior record of contraventions:

The (CFMEU's) conduct complained of….is a clear instance of them taking the law into their own hands and flouting the protection from coercion that section 348 is intended to provide. On the agreed facts, the respondents deliberately engaged in coercion, knowing that their conduct was unlawful. They intended to bully each of the 22 businesses working at the site until their demands were met, as exemplified by the attitude of Mr Buchan when he said, "we don't care where it comes from". The conduct was premeditated and orchestrated, as is plain from the organisation required to ensure that 100 people were present to conduct the blockade.

The conduct of the CFMEU seen in this case brings the trade union movement into disrepute and cannot be tolerated.

 

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union[2016] FCCA 3265 (Brooklyn on Brooks)

On 15 December 2016, the Federal Circuit Court handed down penalties totalling $37,500 against the CFMEU and its former Queensland President David Hanna, for threatening ongoing industrial action at a Brisbane construction site unless a construction firm agreed to sign a secret deed with the union.

Six working days were affected by unprotected industrial action at the Brooklyn on Brookes Apartment project in Brisbane in April 2014, prompting the issue of a return to work order by the FWC.

However, the court found that instead of ending the action, Mr Hanna arranged a meeting with the contractor and threatened continued strikes unless the contractor signed a deed of release with the union.

The effect of the deed was to release the union from all claims of liability arising out of the unlawful action and included a demand that all elements of the deal remained secret. In exchange for signing the deed, the CFMEU offered the contractor a sum of $100.

In handing down the decision, Judge Jarrett emphasised the seriousness of the conduct, especially given the threats were made by a senior official of the CFMEU. His Honour said:

As the very many reported cases reveal, it (the CFMEU) is an organisation with a long and sorry history of industrial disputation in which its willingness to disregard the industrial laws of this country seems to know no bounds.

 

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Ors[2016] FCA 1262 (Quest Apartments)

On 26 October 2016, the Federal Court penalised Melbourne painting and decorating firm Arteam Pty Ltd, along with its director Michael Hanna, a total of $20,000 for attempting to force a worker to join the CFMEU.

The company director admitted to sending a text message to workers on 11 March 2014 stating that they must have valid union memberships before starting work at two Melbourne projects where Arteam had been engaged. The company director sent a further text message reinforcing this statement on 27 March 2014.

On 30 March 2014, a worker informed the company director that he had obtained information sheets from the FWO website about freedom of association which advised that it was his right to choose whether or not he joined a union. Despite this conversation, the following day the company director told the worker that the CFMEU could close the site and prevent others from working if the worker refused to pay union membership fees. As a result, the worker left the site and did not perform any work.

The company director was penalised a total of $2,400, while Arteam Pty Ltd was penalised a total of $17,600 for the contraventions which occurred on 11 March and 27 March 2014.

 

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union[2017] FCA 368 (Kane Constructions)

On 11 April 2017, the Federal Court imposed penalties totalling $490,000 against the CFMEU and a total of $100,800 against ten of its officials. This case involved co-ordinated unlawful industrial action across multiple construction projects managed by Kane Constructions that were worth nearly half a billion dollars.

The coordinated unlawful action saw workers walk off the job at nine projects across Melbourne and Geelong, including four hospitals and an aged care centre, in April and May 2014.

Justice Jessup characterised the conduct of the Respondents as follows:

Over the construction sites with which this proceeding has been concerned, in no instance was there any suggestion of an issue or grievance, specific to the site or the workers on it, that justified, or even explained, the organisation of industrial action … Commonly, this was done without apology or the slightest sense of obligation to the laws which regulate the conduct of industrial relations in Australia. At times, the attitude of the respondents could only be described as high-handed and arrogant. The inference is irresistible that the industrial action which was organised by the respondents had the explicit object of inflicting commercial harm on Kane.

 

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union[2017] FCA 62 (Webb Dock)

On 8 February 2017, the CFMEU and two of its officials were ordered to pay a total of $96,000 in penalties after blockading work at the $1.6 billion Port of Melbourne expansion project and threatening to have 20,000 workers join the dispute.
The Federal Court imposed a penalty of $84,000 against the CFMEU while CFMEU officials Joe Myles and Adam Hall were given penalties of $7,500 and $4,500 respectively. The court found the CFMEU and the officials engaged in unlawful coercion.

The court had been told that on a morning in March 2015, starting before dawn, groups of up to 50 people blocked entrances at Webb Dock.

The CFMEU took the action in support of its enterprise bargaining demands of both the head contractor and sub-contractor.
Justice Jessup stated that the CFMEU's prior history of unlawful conduct:

justifies only one inference: that the CFMEU has done nothing, over the years, to cause its own staff to comply with the law. Indeed, the inference that the CFMEU will always prefer its own interests … to compliance with the law is a compelling one. This case presented yet another instance of that pattern of behaviour. The CFMEU and its members may be grateful that the staff of the banks and other financial institutions to whom it has, I presume, entrusted its considerable assets do not take the same approach to compliance with the law.

 

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union[2017] FCA 10 (Adelaide Hospital)

On 19 January 2017, the Federal Court handed down penalties totalling $57,500 to the CFMEU and two of its most senior officials who threatened "Armageddon" and national industrial action in a dispute at the Royal Adelaide Hospital site.
At a meeting in November 2013, Michael McDermott threatened: 'if you try anything there will be Armageddon' and 'all hell will break loose and we will take this national'.

The threats were made with the intention to deter the head contractor from taking steps to enforce an FWC order requiring employees on the project not to take industrial action.

South Australia State Secretary Aaron Cartledge and former Assistant Secretary Mr McDermott were penalised $3,750 each for threatening to organise industrial action at the construction site. The court also ordered the CFMEU to pay a total penalty of $50,000.

 

Australian Building and Construction Commissioner v Parker[2017] FCA 564 (Barangaroo)

On 24 May 2017, the Federal Court found the CFMEU's New South Wales Branch Secretary Brian Parker intended to coerce a construction company to reinstate a delegate when he organised for 700 workers to walk off the major Barangaroo South Project in July 2014.

Justice Flick ruled that the actions taken by Brian Parker, assistant secretary Rob Kera, delegate Danny Reeves and organiser Luke Collier had been designed to coerce the company to put the union delegate back in his job after his dismissal for allegedly throwing a punch at the company's site manager.

The Court also found that they had intended to coerce workers to take industrial action. Workers walked off the job for 48 hours after the union called a stopwork meeting. The Court found that Mr Parker, Mr Kera, Mr Reeves, Mr Collier and six organisers organised the unlawful industrial action.

As at 30 June 2017, the Court has reserved its decision in relation to what penalties should be imposed on the CFMEU and the officials for their unlawful conduct.