The Federal Court has today made final orders in the case brought by the ABCC against the CFMMEU and its officials concerning Sydney crane company Botany cranes. The orders are for further payments to be made out of the penalties previous imposed as follows:

  • $2,500 be paid to the female operations manager of Botany Cranes;
  • $15,000 be paid to New South Wales police;
  • CFMMEU delegate Howard Byrnes be subject to a personal payment order of $3,500

The Court has ruled that the female Botany Cranes’ operations manager was subjected to intimidation by the picketers’ actions, which Justice Rares described as “…calculated to instil fear into persons who are within or wish to enter those premises.”

The Court ruled “Here, [the Operations Manager] was an innocent victim of the coercion and unlawful picket for which the Union is liable.”

Justice Rares last month awarded penalties of $1,022,500 against the CFMMEU, NSW CFMMEU President Rita Mallia, Assistant Secretaries Robert Kera and Michael Greenfield following threats and unlawful pickets against Botany Cranes in 2019.

The Court also has ordered that $30,000 be paid to Botany Cranes for lost revenue as a result of the picket.

The ABCC brought proceedings against the CFMMEU alleging its unlawful actions were aimed at coercing Botany Cranes to sign up to a CFMMEU enterprise agreement and reinstate Mr Byrnes who Botany Cranes had earlier dismissed in the belief he was sabotaging the business.

Justice Rares in his April judgment cited NSW police video as evidence of the picketers’ aggressive actions.

  • “As in this proceeding, a large group of about 50 individuals, mostly comprising apparently strong, physically well-built males blocking or controlling what would otherwise be free entry to and egress from premises while aggressively chanting self-promoting slogans and pumping fists in the air, is calculated to instill fear into persons who are within or wish to enter those premises.
  • “There could have been no doubt about the intimidatory intent directed towards Botany Cranes of those combining in the picket outside its yard and premises and their conduct, including as manifested in their aggressive chants and gestures.
  • “The police had to attend in considerable numbers. They are a public resource that had to be diverted from their other activities because the Union indicated that it would engage in a protest that, it was safe to infer, would involve unlawful picketing."

In respect of Mr Byrnes, the Court made an order that he personally pay $3,500 and ruled:

“… such an order is necessary to deter Mr Byrnes and other from engaging in similar contravening conduct … and because the Union has an embedded culture to treat the payment of penalties as a price of doing business. … Mr Byrnes has not expressed any contrition or acknowledgement that his conduct was unacceptable.”

ABCC Commissioner Stephen McBurney welcomed the decision and final orders.

Mr McBurney said “There are seven key features of this case:  

  1. It involved the senior leadership of the CFMMEU in NSW, namely, Assistant State Secretary of the CFMMEU, Michael Greenfield, and the State President, Rita Mallia.
  2. This case proceeded in the costs jurisdiction of the Court. The court has made a costs order in favour of the ABCC in an agreed amount of $133,000. This must be paid in addition to the penalties imposed by the Court.
  3. The BCIIP Act introduced a new unlawful picketing offence in December 2016. This is the fourth case where penalties have been imposed for unlawful picketing, with two previous cases involving the CFMMEU. The penalties in this case are the highest to date for unlawful picketing.
  4. This is one of three cases the ABCC has filed alleging the CFMMEU and its officials have been targeting NSW crane companies to coerce them to sign up to CFMMEU enterprise agreements. The other two ongoing cases relate to Wollongong crane company WGC Cranes and Newcastle crane[1] company Wheeler Cranes[2]. Both cases remain before the Court.
  5. The ABCC sought personal payment orders against all four individual union representatives in this case in line with the High Court’s previous landmark decision[3]. The Court ordered that $65,000 of the $100,000 penalty against Michael Greenfield be paid personally. This is the highest in any ABCC case to date.
  6. This is the continuation of a pattern of unlawful conduct by the CFMMEU. It will push penalties incurred by the CFMMEU and its officials since 2016 beyond $3m in NSW and over $12m nationally.
  7. The Court has made orders that part of the penalties be paid to Botany Cranes, their operations Manager, and New South Wales police. All three were adversely affected by the unlawful conduct.

“There has been no expression of contrition or remorse from the CFMMEU or its officials in this case. The judgment speaks for itself in terms of condemnation of the Union’s history of offending and its conduct in this case.”

“The ABCC will continue to address unlawful conduct. We will pay particular regard to the learnings from this case and seek to give victims a measure of redress. They deserve the full protection provided by the law.”

 

[1] Listed for a penalty hearing in the Federal Court on 16 April 2021.

[2] To be listed for a liability hearing in the Federal Court commencing on 5 October  2021.

[3] ABCC v CFMEU [2018] HCA 3 (14 February 2018).