The following is a summary of significant cases for 2013-14. These cases demonstrate instances of alleged serious unlawful conduct in the building and construction industry.
Director FWBII v CFMEU & Ors
FWBC devoted considerable resources to the large-scale demonstrations and other conduct which impacted the Myer Emporium site, as well as sections of Melbourne’s CBD. FWBC proceedings in the Federal Court against the CFMEU are scheduled for hearing early in the 2014–15 financial year. FWBC alleges that the CFMEU and several officials contravened the FW Act coercion and adverse action provisions (s355, s348 and s346).
Director FWBII v Abbott
In a Federal Court case instituted by FWBC, 117 workers who participated in unlawful industrial action on the Woodside LNG Expansion Project in Western Australia were ordered to pay penalties totalling $1,068,000 (of which $387,875 was suspended). The court found the action caused significant economic losses and project delays. Further, it was in defiance of the then Australian Industrial Relations Commission’s order to return to work. This case was significant in that the Court ordered 117 employees who were individually liable to pay penalties of up to $10,000 per person. FWBC also commenced enforcement action against employees who did not meet the court imposed payment schedule.
As at 30 June 2014:
- 100 respondents had paid a total of $596,825 in penalties;
- one respondent’s penalty had been written off ($5,000); and
- 16 respondents owed $82,675 in penalties.
Director FWBII v Adams & Ors
FWBC similarly launched proceedings in February 2014 against 76 individual workers, employees of Crown Construction Services Pty Ltd, on the New Children’s Hospital site in Perth. It is alleged that the employees engaged in unlawful industrial action by leaving the site and not attending or refusing to work. Additionally it is alleged the workers contravened orders of the Fair Work Commission not to engage in industrial action.
Director FWBII v Myles & Ors
FWBC initiated proceedings in response to permit holders acting in an improper manner during the construction of an office tower in Brisbane’s CBD. The Federal Circuit Court imposed penalties of $38,500 for breaches of the FW Act. Notably, the Court observed that the proceedings:
“represent a gross failure of corporate governance on the part of the CFMEU and its affiliates. If BHP, RIO Tinto or other large corporate bodies were engaging in such conduct through their officers or agents there would be, quite properly, public outcry about such omissions. ...it is the failure of the unions to enact corrective action that I find most egregious. I otherwise make similar observations, so far as the corporate respondents are concerned, concerning the involvement of senior management, contrition, cooperation and the need for deterrence.”
Director FWBII v CFMEU & Ors
In a Federal Court case instituted by FWBC the CFMEU and six of its representatives were ordered to pay penalties totalling $230,000 for breaches of 14 workplace relations laws, including laws relating to unlawful industrial action and coercion. The Court heard that as part of a campaign to pressure a head contractor to employ particular members on Victoria’s Peninsula Link road project there were strikes and blockades on this major infrastructure project, as well as strikes on the Southern Link Upgrade project and 11 nearby sites where building work was being conducted at schools. In its decision the Court observed:
“the unlawful conduct constituted a concerted and persistent attempt by the CFMEU ...to coerce... It could not be said that the contravening conduct was inadvertent or genuinely believed to be lawful. The respondents’ conduct was part of a deliberate industrial strategy....that was serious in nature... The existence of alternative lawful means exacerbates the seriousness of the conduct. ... The CFMEU’s conduct...involved a coordinated course of conduct engaged in for a single purpose – to coerce Abigroup Contractors to employ four identified members....The Court observed that there was direct involvement of senior management of the CFMEU in the contraventions, with no express contrition or evidence of corrective action by the CFMEU. And that the CFMEU had engaged in a significant number of prior contraventions of similar legislation. The Court commented that... engaging in conduct with an intention to coerce an employer to employ a person as a building employee (which includes unlawful strike action) is objectively serious. The penalties must reflect the seriousness of the conduct and act as a deterrent to others likely to engage in similar contraventions”.
Director FWBII v CFMEU
On 20 August 2013, the Federal Court imposed civil penalties totalling $119,000 against the CFMEU and the CEPU for contraventions of sections 43 and 44 of the Building and Construction Industry Improvement Act 2005 at three Queensland sites managed by Watpac Construction (Queensland) Pty Ltd (Watpac): the Translation Research Institute Project (TRI project), the Queensland Institute of Medical Research Centre Project (QIMR project), and the Carrara Stadium Refurbishment and Extension Project (Carrara Stadium project).
On 9 November 2010, CFMEU organisers entered the three sites and induced, counselled, procured and organised workers to leave the sites and not return to work as scheduled. The officials returned to the QIMR project the following day and threatened to take coercive action in the form of further industrial action. A CEPU organiser also attended the QIMR project with the other organisers on both days of industrial action.
The Court observed that although it was not a lengthy period of disruption, it was a calculated and coordinated campaign against Watpac over those two days. The purpose of the industrial action was to coerce Watpac into accepting the CFMEU and CEPU’s industrial demands concerning enterprise bargaining agreements and engagement of contractors.
Director FWBII v CFMEU
On 7 October 2013, the Federal Court imposed penalties totalling $230,000 against the CFMEU and six of its representatives after they admitted to 14 breaches of workplace relations laws.
The respondents admitted to engaging in an unlawful campaign of strikes and coercion against construction company Abigroup in an attempt to pressure it to employ particular members on the Peninsula Link road project.
This campaign involved strikes and blockades on the major Peninsula Link project, as well as strikes on the Southern Link Upgrade project and 11 nearby sites where building work was being conducted at schools.
These publicly-funded projects were unnecessarily delayed as a result of the CFMEU’s tactics.
The union and its representatives admitted to directing workers to strike and blockade the entrances to the Peninsula Link site on Cranbourne-Frankston Road and the Seaford Compound as well as Southern Link Upgrade (SLU) on Glenferrie Road on 31 August 2010. On 26 October 2010, they again directed workers to strike on the SLU site as well as several school sites on the following day – Tooradin Primary School, Mt Eliza North Primary School, Derinya Primary School, Dromana Primary School and Truganina South Primary School.
On 11 November 2010, the respondents directed workers to go on strike at the Peninsula Link site on Cranbourne-Frankston Road and several Building the Education Revolution sites – Lyndhurst Primary School, Truganina South Primary School, Drouin South Primary School, Aitken Creek Primary School, Mt Eliza North Primary School and Cranbourne East Primary School.