21 June 2015CFMEU & officials fined $545,000

Organisations persistently abusing law “cannot expect to remain registered”: Court

The Federal Court of Australia has fined the CFMEU and five of its officials $545,000 for unlawful coercion at a taxpayer-funded housing project for the long-term homeless.

In its penalty judgment handed down on Friday, the Federal Court said the conduct “was a deliberate stratagem on the part of the CFMEU…” The Court went on to say that “An industrial organization, be it an employer organisation or an employee organisation, which persistently abuses the privilege by engaging in unlawful conduct cannot expect to remain registered.”

While the Court noted neither the CFMEU nor its officials showed any contrition or remorse for their conduct, the CFMEU and its officials agreed that they had engaged in coercion at the Brisbane construction site. They disrupted work at the site for seven days in a bid to coerce head contractor Grocon to sign an enterprise agreement. In its judgment, the Court referred to the CFMEU’s “outrageous disregard in the past and also in the present case of Australian industrial norms”.

The Court fined CFMEU official Joseph Myles $40,000 and CFMEU officials Paul Cradden and Mark O’Brien $30,000 each. It also fined CFMEU delegate Jack Cummins $25,000, CFMEU official Mike Davis $20,000 and the CFMEU itself $400,000. According to the Court, their actions “impeded, hindered or denied” Grocon employees, subcontractors and delivery people from accessing the site. They did this through “verbal threats and statements” as well as physically blocking the main gate with vehicles.

Mr Myles told Grocon employees words to the effect: “You’ve all got a long time left in the industry, and we can influence your future jobs”.

When a sub-contractor asked: “What are the consequences to my business if I bring my boys on site?” Mr Cradden replied: “You want to know what the consequences are? You would be committing industrial suicide.”

When cars illegally parked in front of the site received parking tickets, Mr Cradden told the site manager words to the effect: “You think a $75 fine will stop us?” On another day, Mr Cradden whispered “You’re f*cked” in the site manager’s ear.

When the site manager asked Mr O’Brien to “please move the vans” which were blocking the entrance and had banners tied to them which said “CFMEU Workers Protest”, Mr O’Brien replied: “No, I don’t know where the keys are.”

Mr O’Brien also said to a Grocon-employed foreman: “Hey scabby, gay boy, gay boy, gay boy, scabby.” While pointing at the foreman, Mr Cradden said “It’s amazing what people become, once a f*cking union delegate hey, that piece of shit there, used to be a union delo.” Mr Davis said: “He used to run with us? F*cking hell.” Mr O’Brien called him the “Lowest sort of f*cking dog ever.” Mr Cradden said: “Think you would know better than to go against the unions” and “You know when all this sh*t is over, it’s just beginning for you then isn’t it, the union covers the whole of f*cking Australia.”

On another day, when the foreman asked a subcontractor in front of the project “Are your guys coming to work”, Mr Cummins yelled words to the effect: “Don’t listen to these f*ckwits, the picket line is still running.”

In its penalty judgment, the Court said “there can be no doubt” the CFMEU’s behaviour in this case “was neither unique to that site or to those times. Rather, it displayed a paradigm example of behaviour described by the Honourable Terence Cole RFD, as Royal Commissioner, in the Final Report of the Royal Commission into the Building and Construction Industry”.

The Court referred extensively to the Cole Royal Commission report, quoting: “There is a serious departure from the rule of law on building sites and on many construction sites…Generally, the perpetrators of this conduct are unions…” And “Many union organisers and delegates display a disregard or contempt for the rule of law. They are used to taking unlawful action for industrial ends…”

The Federal Court said on Friday: “The individual respondents in this case are examplars of the union organisers and delegates displaying a disregard or contempt for the rule of law referred to” [by Royal Commissioner Cole].

In this case, the Court said “one in particular should be singled out for special mention…Mr Myles.” The Court referred to other cases brought by FWBC where Mr Myles or the CFMEU have been fined as a result of Mr Myles’ actions.

Mr Myles strikes me as a union official who is predisposed to engage in unlawful conduct to supplement legitimate industrial aims. A very real question indeed necessarily emerges in relation to Mr Myles as to whether he ought to continue to enjoy any privileges under any industrial law, state or federal,” the Court said.

In reaching its penalty decision, the Court said “Particularly in relation to the CFMEU, the penalties must reflect deterrence and punishment, and the same factors loom large in relation to the individual respondents.” The Court said that breaking the law should “not be seen or assessed on the basis of being nothing more than an affordable price of an unlawful adjunct to industrial bargaining” or should not be seen as “nothing more than an affordable price of doing business.”

As the case commenced under the previous Building and Construction Industry Improvement Act 2005, the maximum penalties available to the court were $22,000 for an individual and $110,000 for a corporation for a single contravention.  The maximum penalties currently available to the courts for unlawful conduct under the Fair Work Act 2009 are $10,200 for an individual and $51,000 for a corporation, including unions.

The court also ordered the CFMEU pay $10,000 in costs to FWBC.

FWBC Director Nigel Hadgkiss said his agency would continue to bring matters like this before the courts. “Coercion is particularly heinous conduct and has widespread impacts on Australia’s building and construction industry. Regrettably the conduct outlined in this case is but day to day activity on Australia’s building and construction sites, hence, undertaking investigations of this kind are very much part of FWBC’s increasing core business,” Mr Hadgkiss said.

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