Alfred v Construction Forestry, Mining and Energy Union (CFMEU)

Applicant: ABCC Inspector Gregory Alfred

Respondent(s): CFMEU

Date filed: 20 May 2010

Court Findings:

The Federal Court of Australia found the CFMEU had contravened s38 of the Building and Construction Industry Improvement Act (2005)BCII Act by engaging in unlawful industrial action and section 44 of the BCII Act by taking action to coerce Fulton Hogan Pty Ltd to either agree to make an enterprise agreement acceptable to the CFMEU or terminate or vary an existing agreement or both.  Those contraventions arose from the establishment and maintenance by its officials of a blockade to stop the performance of all work at the Melbourne Markets Relocation Project Site between 19 May 2010 and 28 May 2010.

The CFMEU were also found to have acted in contempt of an order of the Court that restrained the CFMEU and its officers, employees and agents from preventing or hindering access to the project, and from attending or leaving any vehicle, trailer or equipment within 100 metres of the entrance to the site.

In late 2009 the Victorian Government engaged Bovis Lend Lease as the principal contractor for the design and construction of the new Melbourne Wholesale Fruit, Vegetable and Flower Market at 315 Cooper Street, Epping. The Wholesale Market is scheduled to open in 2012. The Project was a large infrastructure project of the Victorian Government, at a cost of approximately $291 million.

Bovis engaged Fulton Hogan Pty Ltd to perform earthworks on the Project. Fulton Hogan commenced work in December 2009 and completed the majority of its work in October 2010.

Fulton Hogan made a Greenfields Agreement known as the Fulton Hogan and the Australian Workers Union Melbourne Market Relocation Project Agreement 2009-2012 (Fulton Hogan Agreement) to cover its employees working on the Project. The Fulton Hogan Agreement commenced operation on 29 January 2010 and has a nominal expiry date of 30 November 2012.

On 10 February 2010, the CFMEU filed a Notice of Appeal against Fair Work Australia's decision to approve the Fulton Hogan Agreement. The CFMEU withdrew the Appeal before it was heard.

Early on 19 May 2010 a picket and vehicle blockade was established at the site. Approximately 75 workers and 30 vehicles that were scheduled to work at, or enter, the site were unable to enter. During that time, various CFMEU officials were present at the entrance to the site and some had parked their cars to block entry by any vehicle.

On 20 May 2010 the ABCC issued a proceeding against the CFMEU alleging that the blockade by its officials was unlawful industrial action and that it was done with intent to coerce Fulton Hogan to enter into an industrial agreement with the CFMEU. The Federal Court of Australia issued interim interlocutory orders restraining the CFMEU and its officers, employees and agents from preventing or hindering access to the project, and from attending or leaving any vehicle, trailer or equipment within 100 metres of the entrance to the site.

On 24 May 2010 the orders were continued and extended to restrain the CFMEU from interfering with the site or its perimeter fencing.

The order remained in place until hearing and determination of the proceeding.

The blockade continued continuously at the site until 28 May 2010.

The CFMEU pleaded guilty, and the Court accepted, that between approximately 10:13 am on 21 May 2010 and approximately 1:38pm on 28 May 2010 the CFMEU was in contempt of Court orders because its officers, employees or agents continued to blockade the site.

Court Outcome:

On 2 June 2011 Tracey J in the Federal Court of Australia imposed the following penalties on the  Construction, Forestry, Mining and Energy Union:

  • a penalty of $100,000 for contravening s38 and s44 of the Building and Construction

Industry Improvement Act (2005);          

  • a penalty of $150,000 for contempt of the injunction;

  • the sum of  $190,000 in costs to the ABCC;

  • $120,000 in compensation for six contractors.

view the reported case at: http://www.austlii.edu.au/au/cases/cth/FCA/2011/556.html

view the contempt decision at: http://www.austlii.edu.au/au/cases/cth/FCA/2011/557.html