Significant outcomes in education, advice and assistance

In the reporting period, the agency achieved strong outcomes in education, advice and assistance. The agency achieved these outcomes by:

  • responding to enquiries
  • delivering presentations to building industry participants
  • visiting building and construction worksites
  • providing information and education materials online.

Enquiries

The ABCC receives enquiries from building industry participants through a range of sources. 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 2 shows, the agency received 6,976 enquiries in the reporting period. This number is considerably higher than the previous year and the highest number in the history of the ABCC and its predecessor agencies. The majority of these enquiries (65%) were received through the agency's 1800 hotline. Of those calls, 98% were answered by agency staff within 60 seconds.

More than 1,990 enquiries were received via online sources, including the agency's web enquiry form and email.

Building industry participants directly contacted investigators to seek advice or assistance on 354 occasions.

Table 2: Number of enquiries by enquiry method

Method of enquiry 2016–17 2017–18
Hotline 3,524 4,555
Online 1,859 1,990
Direct 419 354
Referral 41 46
Other 39 31
Total 5,882 6,976

The reporting period saw a dramatic increase in the number of code related enquiries, particularly in relation to code assessments. As Table 3 shows, the agency received 4,871 enquiries about code issues—an increase of more than 25% from the previous reporting period.

Table 3: Number of enquiries by main topic of enquiry

Main topic of enquiry 2016–17 2017–18
Code 3,624 4,871
Code assessment 1,562 2,427
General code information 1,182 1,282
Code advice 818 946
Security of payment—notification# - 53
Security of payment—enquiry# - 48
Notice of code breach 55 46
s. 6B application# - 31
s. 6A application# - 16
s. 6A general advice# - 14
State code information 7 7
Agreements - 1
Workplace laws—building work 935 920
Right of entry 364 315
Wages and entitlements 136 228
Unlawful industrial action 214 154
Coercion 107 94
Freedom of association 69 58
Sham contracting 28 53
Misrepresentation of workplace rights - 9
Strike pay 17 6
Noncompliance with notices - 3
Other laws—non-designated* 512 567
General agency information and activities 299 389
Not relevant to the building industry 275 120
Workplace laws—non-building work 237 109
Total 5,882 6,976

* 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 the Fair Work Commission (FWC), and those related to unfair dismissal or unlawful termination that are relevant to the FWC or Fair Work Ombudsman.

# New categorisation values introduced in new case management system, inCase.

The agency achieved a result of 81% 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.

Presentations

Presentations are delivered by operational staff, middle managers, members of the Executive Team and the Commissioner. Their purpose is to educate building industry participants about their rights and obligations under workplace relations laws and the building codes.

As Table 4 shows, in the reporting period, the agency delivered 171 presentations to 5,110 building industry participants. Over the past two reporting periods, the agency has presented to more than 10,000 building industry participants.

While fewer presentations were conducted compared with the previous reporting period, the number of presentations delivered exceeded the KPI of 150 presentations.

The higher number of presentations during the previous reporting period was a direct result of demand created by the passage of new legislation.

Table 4: Presentations delivered and attendees

Presentations/attendees 2016–17 2017–18
Presentations 227 171
Attendees 5,552 5,110

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 5 shows, in the reporting period, the agency made 1,070 visits to building and construction worksites and offices. Figure 3 shows the locations of the sites visited.

Table 5: Number of site visits

Site Visits 2016–17 2017–18
Total 1,058 1,070

Figure 3: Map of site visits

Figure 3 – this is a heat map which shows the spread of site visits across each state and territory.  It shows that most site visits have occurred in areas surrounding the capital cities and major regional hubs, but that some site visits have also been carried out in other regional areas in each state and territory.

Media activity

As well as 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:

  • issues media releases on significant events
  • responds to requests for advice and information from journalists and industry writers
  • proactively engages with the sector.

During the reporting period, the agency published an edition of Enterprise Agreement News, an e-newsletter targeted at contractors and other stakeholders with a particular interest in enterprise agreement assessments.

The agency publishes e-alerts on topical issues affecting the building and construction industry. During the reporting period, an e-alert updated stakeholders on the requirements for enterprise agreement compliance, prior to the Code compliance date of 1 September 2017.

The ABCC also publishes Industry Update, an electronic newsletter sent to stakeholders.

Each of these communications is available on the news and media section of the ABCC website.

Publication of new app and redevelopment of website

The agency published the ABCC Onsite app in June 2018. The app puts information in stakeholders' hands when and where they need it—on site. The app contains information about:

  • wages and entitlements
  • freedom of association
  • right of entry
  • unlawful pickets
  • coercion
  • unlawful industrial action.

Another education priority for the reporting period was redeveloping all the agency's web material for use on a streamlined, user-friendly, plain-English website, to be launched later in 2018. The website redevelopment followed consultation with stakeholders on their needs and will provide a positive user experience that will aid compliance.

Significant outcomes in code compliance

In the reporting period, the agency contributed to improved code compliance through education, advice and assistance.

The ABCC's 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 Code.

In addition to the materials published on the ABCC's website, the agency prioritised direct contact with building industry participants, including contractors, government agencies, and employer and employee associations.

As shown by Table 3, the agency responded to 4,871 code enquiries. The ABCC also assessed 3,092 enterprise agreements, 352 individual clauses and 520 workplace relations management plans for compliance with the Code. Through these combined activities, the ABCC assisted building industry participants with code issues on 8,835 occasions.

The agency streamlined time frames, such as by reducing enterprise agreement assessment times to a four-week average and clause assessments to a three-day average, which improved engagement with stakeholders.

The ABCC continued to monitor contractors' compliance through proactive compliance activities. During the reporting period, the agency began its first desktop audit campaign, to apply its resources to a broad range of code issues. The campaign was directed at subcontractor compliance, labour market testing and security of payments. Following the success of this campaign, the agency will undertake quarterly desktop audit campaigns for the next reporting period.

While security of payment enquiries and notifications increased from 20 to 101 over the reporting period, the ABCC identified the need to increase awareness of its role in supporting compliance. In consultation with the Security of Payments Working Group, the agency developed key messages for a security of payment education campaign, launched in July 2018. The campaign's messages take into account the broader security of payment issues that affect subcontractors. Its products, including redeveloped plain-English web content and high-impact flyers and booklets, are aimed at contractors and subcontractors covered by the Code. The campaign's goal is to improve awareness, engagement, reporting and compliance in relation to security of payment provisions in the Code and effectively convey the ABCC's role in supporting compliance.

More information about the Security of Payments Working Group is in Appendix B: Security of Payments Working Group Annual Report.

Assessment of enterprise agreements

During the reporting period, the agency provided advice on the compliance of draft and Fair Work Commission (FWC) approved (registered) enterprise agreements with the Code. Table 6 shows the numbers of agreements received and assessed.

Table 6: Agreements received and assessed

Agreement status 2016–17 2017–18
Received 1,371 2,694
Assessed 871 3,092

In the reporting period, the agency received 2,694 enterprise agreements for assessment against the requirements of the Code. In the reporting period, the ABCC assessed 3,092 agreements, which included a number of agreements that were outstanding from the previous reporting period. The agency also received and assessed 352 individual clauses in an average time frame of three days.

Compliance activities

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 lawful workplace practices.

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 code audit activity.

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

In the reporting period, the agency commenced 86 audits and 241 inspections. Table 7 shows the number of compliance activities undertaken by type. This total of 327 compliance activities was 27 more than the KPI target of 300.

Table 7: Code compliance activities commenced

Compliance activities commenced 2016–17 2017–18
Code audits 45 86
Code inspections 307 241
Total 352 327

In addition, the agency finalised 87 audits this reporting period, some of which were commenced in a prior reporting period. Potential code issues were identified in 42 audits. These figures are reported in Appendix A: BCIIP Act Annual Report.

Figure 4 shows the locations of audits and inspections undertaken.

Figure 4: Map of code audits and inspections conducted

Figure 4 – this is a heat map which shows the spread of code audits and inspections conducted across each state and territory.  It shows that audits and inspections have been conducted wherever construction work is happening - in areas surrounding the capital cities and major regional hubs, and also in other regional areas in each state and territory.

Rectification of noncompliance with the building codes

The ABCC is committed to working with code covered entities to ensure their compliance with relevant building codes. Where noncompliance with building codes is identified, the agency seeks, where appropriate, to provide education and opportunities for the entity to rectify issues voluntarily. If identified noncompliance is not, or cannot be, satisfactorily rectified, the Commissioner can refer the noncompliance to the Minister with a recommendation that a sanction be imposed.

In the 2017–18 reporting period, all 42 identified instances of noncompliance with the codes were voluntarily rectified in the finalised audits.

Significant outcomes in wages and entitlements compliance

In the reporting period, the agency increased its activities in assisting employers and employees to understand and comply with their rights and obligations in relation to the payment of wages. These activities led to the agency recovering $262,398 for 186 employees, from 32 employers.

The agency implemented an audit program to proactively check employers' levels of compliance with their wages obligations. Employers were provided with education and an opportunity to voluntarily rectify any underpayments. A total of 139 employers participated in these audits, 64% of which were found to be compliant with their obligations and 31% not compliant with all their obligations. All of these employers took steps to correct any issues identified. The remaining 5% of employers were upgraded for further investigation.

In the reporting period, the agency commenced 47 investigations and concluded 32 investigations into wage underpayment and sham contracting allegations. Of these, eight were settled voluntarily between the employer and employees, resulting in $42,481 being repaid to 14 employees, by eight employers. In 19 investigations, the employer was found to be complying with its obligations. For the remaining five concluded investigations, it was not in the public interest for the agency to commence enforcement action. At the end of the reporting period, 24 investigations were still underway.

Significant outcomes in enforcement

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

Investigations

Table 8 shows the number of investigations commenced, finalised and continuing for the last two reporting periods.

Table 8: Investigations by status

Investigation status 2016–17 2017–18
New investigations commenced 142 125
Investigations finalised 154 107
Investigations continuing at end of period 52 68

In the reporting period, the agency commenced 125 new investigations into suspected breaches of workplace laws. Table 9 shows these by primary topic of investigation, and Table 10 by state.

Table 9: New investigations commenced by primary topic

Primary topic of investigation 2016–17 2017–18
Wages and entitlements 15 35
Right of entry 30 27
Coercion 44 21
Unlawful industrial action 34 19
Sham contracting 6 12
Freedom of association 13 9
Misrepresentation of workplace rights - 2
Total 142 125

Table 10: New investigations commenced by state

State 2016–17 2017–18
VIC 41 30
NSW 36 26
QLD 28 23
TAS 11 3
WA 11 19
SA 10 5
NT 4 7
ACT 1 12
Total 142 125

In the reporting period, the agency investigated 374 alleged contraventions of Commonwealth workplace laws. Table 11 shows these by type of contravention for the past two reporting periods.

Table 11: Types of contraventions investigated

Type of contravention investigated 2016–17 2017–18
Freedom of association 113 72
Coercion 111 61
Right of entry 105 71
Unlawful industrial action 72 37
Wages and entitlements 35 57
Sham contracting 16 29
Strike pay 15 3
Other - 44
Total 467 374

Use of compliance powers

When investigating a complaint, the ABCC will first ask the respondent to voluntarily offer the required information.

If the agency is unable to obtain the information voluntarily, the Commissioner may exercise examination powers to investigate a suspected breach of designated building laws such as the BCIIP Act and the Fair Work Act.

The powers can be utilised 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 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.

Use of examination powers has an extensive range of safeguards. As a precondition to their use, the Commissioner is required to make an application supported by a sworn affidavit to a Presidential Member of the Commonwealth Administrative Appeals Tribunal.

As soon as practicable after an examination, the Commissioner must give the Commonwealth Ombudsman:

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

The Commonwealth Ombudsman must then review the exercise of examination powers by the Commissioner and any person assisting the Commissioner, and prepare and present to the parliament a report about examinations conducted. The report must include the results of reviews conducted during the relevant quarter.

A witness attending for examination before the Commissioner is entitled to:

  • be represented by a lawyer of his or her choice
  • apply for a claim for reasonable expenses incurred in attending the examination.

Examination powers are used only as a last resort. In the reporting period, the Commissioner applied for 14 examination notices and exercised examination powers on 12 occasions. Each of these examinations was conducted under the BCIIP Act. Of the witnesses examined, six were legally represented.

Table 12 shows the number of examination notices issued and examinations conducted during the last two reporting periods. The number of notices issued during the reporting period increased; however, the ABCC commenced operations on 2 December 2016 and, as such, the previous reporting period was effectively only seven months.

Table 12: Examination notices issued and examinations conducted

State Examination notices issued Examinations conducted
  2016–17 2017–18 2016–17 2017–18
VIC 7 2 5 2
QLD - 8 - 7
WA - 4 - 3
Total 7 14 5 12

Table 13 shows the types of examination notices issued. Table 14 and Table 15 show the outcomes of examinations undertaken and the types of examinees.

Table 13: Types of examination notices issued

Type of examination notice 2016–17 2017–18
Give information - 1
Produce documents - 1
Attend before the Commissioner 7 12
Total 7 14

Table 14: Outcomes of examinations undertaken

Outcome of examination 2016–17 2017–18
Investigation closed with no proceedings issued 3 -
Investigation ongoing - 11
Proceedings commenced, case currently before the courts 2 1
Total 5 12

Table 15: Types of examinees for examinations conducted

Type of examinee 2016–17 2017–18
Management 3 4
Employee 2 3
Union official - 3
Government - 2
Total 5 12

Penalty proceedings

In the reporting period, the agency initiated 10 proceedings in the courts.

Table 16 shows that the primary allegations of the 10 proceedings commenced related to coercion, right of entry, freedom of association and unlawful picketing breaches.

Table 16: Proceedings commenced by nature of allegation

Nature of allegation* 2016–17 2017–18
Coercion 3 1
Right of entry 2 3
Freedom of association 2 5
Unlawful industrial action 1 -
Unlawful picketing - 1
Total 8 10

* Where a matter involves more than one type of allegation, the type of allegation most central to the proceedings is selected.

Table 17 shows the results of finalised proceedings. The agency finalised 17 matters in the reporting period, with a 94% success rate.

Table 17: Results of finalised proceedings

Result of finalised proceedings 2016–17 2017–18
Successful 20 16
Unsuccessful 3* 1
Discontinued 3 -
Total 26 17

* Includes two matters currently under appeal that were previously reported as finalised.

As Table 18 shows, in the reporting period, $5,987,565 in penalties were imposed—the highest recorded amount for the ABCC and its predecessor agencies. This result also marks the seventh occasion that penalties imposed in a financial year exceeded $1 million, and the fourth occasion that penalties exceeded $2 million, in the history of the ABCC and its predecessor agencies.

Table 18: Penalties imposed

Type of penalty 2016–17 2017–18
Unlawful industrial action $1,157,150 $1,871,801
Coercion* $451,000 $3,035,630
Right of entry* $144,200 $575,500
Freedom of association* $394,175 $314,883
Wages and entitlements - -
Other - $189,751
Total penalties $2,146,525 $5,987,565
Total penalties suspended - -
Total penalties subject to appeal as at 30 June 2018 - $3,488,300

* Main topic of the contravention has been reclassified since last reporting period.

Applications, submissions and interventions

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

Table 19 shows that, in the reporting period, the ABCC made nine submissions on permit applications and one intervention in a court proceeding.

Table 19: Submissions on permit applications and interventions

Category 2016–17 2017–18
Submissions on permit applications 3 9
Interventions - 1
Total 3 10

Injunctions

Injunctions are discretionary orders of courts that compel a party to do, or refrain from doing, specific acts. These are often ordered on an interlocutory basis to preserve the status quo pending a court's determination of legal rights in a matter. The ABCC sought and was granted one interlocutory injunction in the reporting period.

Australian Building and Construction Commissioner v. Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2018] FCA 553

On 19 April 2018, the ABCC commenced Federal Court proceedings against the CFMMEU and seven officials with regard to a series of entries to a project site in Caloundra on 8 March 2018, and seven consecutive business days in April where officials failed to produce federal entry permits.

On 20 April 2018, the Federal Court granted an interlocutory injunction that required the relevant CFMMEU officials who seek to enter the Caloundra site under section 81 of the Work Health and Safety Act 2011 (Qld) to produce their federal entry permit when requested to do so.

The court recorded in its decision that the Queensland Police Service attended the site on a number of occasions, arresting the CFMMEU officials for trespassing.

In granting the interlocutory injunction, Justice Collier noted that the requirement of the relevant union officials to produce their entry permits on request was scarcely a hardship to either them or the CFMMEU.

The injunction will remain in place until the case is heard and determined by the court. A hearing date to determine liability has been fixed for November 2018.

Significant cases

The following examples of significant cases that were finalised in the 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 [2018] HCA 3

Facts

The ABCC commenced proceedings against the CFMEU and its official Joseph Myles for threatening two building contractors and organising an unlawful blockade of the taxpayer funded $4.3 billion Regional Rail Link project site. The blockade prevented the delivery of concrete to the site and caused tonnes of wastage.

Decision

At first instance, on 13 May 2016, Justice Mortimer ordered that the union could not directly or indirectly reimburse or indemnify Mr Myles for the payment of his penalties.

The CFMEU appealed the Federal Court's ruling that Mr Myles's penalties could not be paid by the union. The Full Federal Court upheld the CFMEU's appeal. The ABCC then appealed to the High Court of Australia.

On 14 February 2018, the High Court confirmed that the Federal Court can order a union official to personally pay a penalty and not seek reimbursement or indemnity from the union.

Following the High Court's decision, the Full Federal Court on 25 June 2018 increased the penalties against CFMMEU official Mr Myles and the CFMMEU. Mr Myles was made personally liable for penalties totalling $19,500, and the CFMMEU was penalised $111,000 for three contraventions of section 348 ('Coercion') of the Fair Work Act (see Construction, Forestry, Maritime, Mining and Energy Union v. Australian Building and Construction Commissioner (The Non Indemnification Personal Payment Case) [2018] FCAFC 97).2

Penalties

Penalties were awarded as outlined in Table 20.

Table 20: Penalties, CFMMEU v. ABCC (The Non Indemnification Personal Payment Case) [2018] FCAFC 97

Respondents Penalty
Joseph Myles $19,500
CFMMEU $111,000
Total $130,500

Judicial comments

In the High Court, Justices Keane, Nettle and Gordon found:

... the principal object of an order that a person pay a pecuniary penalty ... is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners ...

An order that a contravener must not seek or receive indemnity from his or her co-contravener ... assists in accomplishing the calculated level of sting or burden of the pecuniary penalty ...

The Full Federal Court in its determination stated:

The penalty against the individual must be a burden or have a sting to be a deterrent.

Australian Building and Construction Commissioner v. Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No. 3) [2018] FCA 564

Facts

The ABCC commenced proceedings against the CFMMEU and seven of its officials for engaging in strikes and work stoppages over a month-long period at construction sites across nine Brisbane sites in 2016, on some occasions resulting in the cancellation of a number of concrete pours.

The unlawful industrial action was aimed at forcing a major contractor to employ only subcontractors who had entered into an enterprise agreement with the CFMMEU or CFMMEU approved unions.

CFMMEU officials Matthew Parfitt, Justin Steele, Kurt Pauls, Edward Bland, Antonio Floro, Anthony Stott and Michael Davis targeted nine sites, instigating strikes and disrupting work 16 times from 25 August 2016 to 27 September 2016. The unlawful conduct impacted large-scale projects, including the Skytower project and Newstead Central apartment development.

Decision

On 24 April 2018, Justice Collier held that the CFMMEU and its seven officials had contravened sections 355 ('Coercion'), 346 ('Adverse Action') and 417 ('Industrial Action') of the Fair Work Act.

This matter is currently under appeal.

Penalties

Penalties were awarded as outlined in Table 21.

Table 21: Penalties, ABCC v. CFMMEU (The Nine Brisbane Sites Case) (No. 3) [2018] FCA 564

Respondents Penalty
Matthew Parfitt $10,000
Justin Steele $30,000
Kurt Pauls $12,000
Edward Bland $12,000
Antonio Floro $15,000
Anthony Stott $5,000
Michael Davis $6,000
CFMMEU $432,000
Total $522,000

Judicial comments

Justice Collier said:

It is in my view apparent that the actions of the CFMMEU, through its officials and employees, was orchestrated to take place on particular dates to cause maximum disruption on those dates.

Australian Building and Construction Commissioner v. Construction, Forestry, Mining and Energy Union (The Gorgon Project Case) [2018] FCA 897

Facts

The ABCC commenced proceedings against the CFMEU and its official Bradley Upton following allegations that Mr Upton abused and threatened construction workers on the Gorgon Project who were not members of the union.

Mr Upton entered the Gorgon Project, located off the coast of WA, on 3 December 2015 and addressed a group of 50 to 60 workers for 10 minutes during their morning break. The group included both union and non-union members.

The ABCC alleged that, during his address, Mr Upton's statements constituted threats to workers on the site who were not members of the union, implying they would be subject to alienation and abuse on the Gorgon Project. These threats were made with the intent to coerce the workers to join the union.

... the CFMEU ... has to take responsibility for the conduct of its officials and surely, at one point or another, must begin to take positive steps to educate its officials not to contravene the law and as to proper standards of conduct.

– Justice Barker

Decision

On 14 June 2018, Justice Barker held that both Mr Upton and the CFMEU contravened section 348 ('Coercion') of the Fair Work Act.

Penalties

Penalties were awarded as outlined in Table 22.

Table 22: Penalties, ABCC v. CFMEU (The Gorgon Project Case) [2018] FCA 897

Respondents Penalty
Bradley Upton $8,100
CFMEU $43,200
Total $51,300

Judicial comments

Justice Barker said:

It is common, it seems, for some members of unions to believe that any manner of foul language or intimidatory conduct is par for the course at a union meeting ... It is precisely that sort of conduct that gives unions and union representatives a bad name ...

Australian Building and Construction Commissioner v. Parker [2017] FCA 564

Facts

The ABCC commenced proceedings against the CFMEU, its NSW division, and nine of its officials for unlawfully seeking to coerce construction company Lend Lease to reinstate a suspended union delegate.

Decision

On 24 November 2017, the Federal Court found the CFMEU's NSW Branch Secretary Brian Parker intended to coerce Lend Lease to reinstate a delegate who had organised for between 600 and 1,000 workers to walk off the major Barangaroo South project in July 2014.

Justice Flick ruled that the actions taken by Mr Parker, assistant secretary Rob Kera, delegate Danny Reeves and organiser Luke Collier were designed to coerce the company to reinstate the union delegate after he had been suspended from duty following a number of workplace incidents and a related Lend Lease investigation.

The court also found the union had intended to coerce workers to take unlawful industrial action. A considerable number of workers failed to attend work on 24 and 25 July 2014 after the union called a stop work meeting. The court found that Mr Parker, Mr Kera, Mr Reeves, Mr Collier and five other CFMEU officials organised this unlawful industrial action.

The court ordered the CFMEU to publish notices in two Sydney newspapers (The Sydney Morning Herald and The Daily Telegraph) and the CFMEU's journal about the unlawful conduct of its officials.

This matter is currently under appeal.

Penalties

Penalties were awarded as outlined in Table 23.

Table 23: Penalties, ABCC v. Parker [2017] FCA 564

Respondents Penalty
Brian Parker $45,400
Robert Kera $41,250
Danny Reeves $41,000
Luke Collier $40,400
Anthony Sloane $5,500
Darren Greenfield $5,000
Darren Taylor $4,500
Richard Auimatagi $3,000
Michael Greenfield $3,000
CFMEU $1,326,000
CFMEU NSW $956,250
Total $2,471,300

Judicial comments

Justice Flick said:

The CFMEU's conduct exposes a cavalier disregard for the prior penalties imposed by this Court and exposes the fact that such prior impositions have failed to act as a deterrent against further unlawful industrial action.

Australian Building and Construction Commissioner v. Construction, Forestry, Mining and Energy Union (The Footscray Station Case) [2017] FCA 1555

Facts

The ABCC commenced proceedings against the CFMEU and its officials Drew MacDonald and Joseph Myles for acting in an improper manner at the Footscray Railway Station construction site of the Footscray to Deer Park Project Package C. The project was part of the Victorian Government's Regional Rail Link Project.

Decision

On 21 December 2017, Justice Tracey held that Mr Myles, Mr MacDonald and the CFMEU contravened sections 499 and 500 of the Fair Work Act, as follows:

  • Mr Myles failed to comply with an occupational health and safety requirement, by walking through an area delineated as being out of bounds for safety reasons and failing to exit the area when being requested to do so by the site occupier.
  • Mr Myles acted in an improper manner by summoning and addressing a group of workers, which caused them to cease working.
  • Mr MacDonald and Mr Myles hindered and obstructed the pouring of concrete by standing near a concrete truck and failing to move out of the way when requested.
  • Mr Myles hindered and obstructed the pouring of concrete from a second concrete truck.
  • The CFMEU was liable for the contraventions of Mr Myles and Mr MacDonald as an accessory.

The court rejected that the visit by the union officials was for health and safety issues, finding the visit 'was to disrupt concrete pours which [the officials] knew were being undertaken that day'.

The court noted that Mr Myles had acted in an 'unsafe' manner and had a 'deplorable personal history of offending', and imposed a penalty of $32,000 for his conduct.

Penalties

Penalties were awarded as outlined in Table 24.

Table 24: Penalties, ABCC v. CFMEU (The Footscray Station Case) [2017] FCA 1555

Respondents Penalty
Joseph Myles $32,000
Drew MacDonald $10,000
CFMEU $200,000
Total $242,000

Judicial comments

Justice Tracey said:

... millions of dollars of union funds, which could otherwise be utilised for the benefit of members [have been] expended in paying penalties for these persistent contraventions.

Australian Building and Construction Commissioner v. Ingham (No. 2) (The Enoggera Barracks Case) [2018] FCA 263

Facts

The ABCC commenced proceedings against the CFMEU and 19 of its officials after they shut down two major Brisbane sites as part of a prolonged campaign to force the site's head contractor to sign a CFMEU enterprise agreement.

The CFMEU and its officials, including Jade Ingham, Assistant CFMEU State Secretary, organised work stoppages at the following two head contractors' projects in the period March to November 2013:

  • $777m project at Enoggera Army Barracks (redevelopment/construction of defence facilities)
  • $60m project at Queensland University of Technology (QUT), Kelvin Grove campus (demolition/refurbishment of existing building and construction of new buildings).

On five separate dates in 2013 (8 March, 9 August, 28 October, 30 October and 7 November) CFMEU officials attended one or both projects, and held meetings with workers, after which the workers left and did not return to work. Conduct on 30 October and 7 November 2013 also breached FWC orders that the CFMEU not organise industrial action.

On two days, 11 and 12 November 2013, CFMEU officials stood at the entrance of the Enoggera site, engaging in coercive conduct by either making it difficult for workers to enter the site or preventing workers from entering.

On three days (18, 21 and 25 November 2013), CFMEU officials stood at the entrance and stopped vehicles from entering the QUT site.

The campaign stopped after the head contractor agreed to enter into an enterprise agreement with the CFMEU on 14 December 2013.

Decision

On 9 March 2018, Justice Rangiah held that the CFMEU and 19 of its officials had contravened sections 343 ('Coercion'), 421 ('Contravening FWC order') and 417 ('Industrial Action') of the Fair Work Act.

Penalties

Penalties were awarded as outlined in Table 25.

Table 25: Penalties, ABCC v. Ingham (No. 2) (The Enoggera Barracks Case) [2018] FCA 263

Respondents Penalty
Jade Ingham $30,000
Kane Pearson $37,500
Anthony Kong $21,000
Kevin Griffin $17,500
Michael Myles $22,500
Andrew Sutherland $10,500
Mark O'Brien $22,500
Dennis Mitchell $10,500
Chad Bragdon $22,500
Edward Bland $ 7,500
Duncan McAllister $14,000
Benjamin Sheeran $ 3,500
Wayne Scobie $ 7,000
Mace Griffin $ 7,000
John Cummins $ 7,500
Ryan Whakaruru $ 3,500
Lindsay Stohr $ 7,000
Aaron Kelly $10,500
Antonio Floro $3,600
CFMEU $551,900
Total $817,500

Judicial comments

Justice Rangiah said that there was:

... no evidence of any attempts by the CFMEU to take corrective steps to ensure that [CFMEU officials] and agents comply with the law.

The behaviour of the respondents who contravened s. 343 of the FWA [Fair Work Act] was confronting, threatening and intimidatory ... the respondents' conduct was deliberate, flagrant and systematic.

– Justice Rangiah

Australian Building and Construction Commissioner v. Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235

Facts

The ABCC commenced proceedings against the CFMEU and one of its delegates, Andrew Harisiou, for blocking a non-union member from working on a Melbourne construction site and coercing another to pay outstanding union fees before letting him start on the job.

Mr Harisiou admitted that in August 2015 he told workers at the Pacific Werribee shopping centre site who were not CFMEU members that they were not allowed on the site if they were not part of the union.

One worker was not allowed to work on the day, while a second worker was allowed on site after his employer paid outstanding union fees.

Decision

On 23 October 2017, Justice Tracey held that Mr Harisiou and the CFMEU contravened section 348 ('Coercion') of the Fair Work Act.

Penalties

Penalties were awarded as outlined in Table 26.

Table 26: Penalties, ABCC v. CFMEU (Werribee Shopping Centre Case) [2017] FCA 1235

Respondents Penalty
Andrew Harisiou $8,000
CFMEU $90,000
Total $98,000

Judicial comments

Justice Tracey said Mr Harisiou's conduct was 'deliberate and wilful' and that this case fell into the 'pattern of disregard for the law'. He also said:

No assurance has been proffered by the CFMEU that it will direct its shop stewards not to seek to enforce 'no ticket, no start' regimes ...

Australian Building and Construction Commissioner v. Hanna & Anor (No. 3) [2017] FCCA 2519

Facts

The ABCC commenced proceedings against the CFMEU following multiple right of entry breaches by former Queensland CFMEU President Dave Hanna at a Fortitude Valley construction site in February 2015.

Mr Hanna had admitted that when he was asked for a right of entry permit he raised his middle finger and said he did not need one.

He squirted water at a person, which struck them in the face, shirt and mobile phone, and used another employee's swipe card to exit staff from the worksite.

Decision

On 19 October 2017, Judge Vasta held that the CFMEU contravened section 500 of the Fair Work Act.

The decision cited approximately 120 previous occasions that the courts had sanctioned the CFMEU for contraventions of industrial law over the past 10 years.

Judge Vasta said the contraventions were in 'the worst category' and imposed the maximum possible penalty for the six contraventions against the union, saying:

If I could have imposed a greater penalty for these contraventions, I most certainly would have done so.

An appeal was lodged in the reporting period, and the penalty was upheld on 14 August 2018.

Penalties

Penalties were awarded as outlined in Table 27.

Table 27: Penalties, ABCC v. Hanna (No. 3) [2017] FCCA 2519

Respondents Penalty
CFMEU $306,000
Total $306,000

Judicial comments

It is no understatement to describe the CFMEU as the most recidivist corporate offender in Australian history

– Judge Vasta

2 The orders to pay the penalties were made by the Federal Court on 2 August 2018.