Hadgkiss v Aldin and Others

Applicant: ABCC Inspector Nigel Hadgkiss 

Respondent(s): Aldin & 106 others 

Date filed: 5 July 2006 

Outcome:

On 20 December 2007 the Court made declarations that:

  • 64 employees contravened the Building and Construction Industry Improvement Act 2005 by engaging in unlawful industrial action and the Workplace Relations Act 1996 by breaching an order of the AIRC. The penalty for these employees was $10,000 of which $6750 is suspended

  • three employees contravened the BCII Act and the WR Act. The penalty for these employees was $8,400 of which $5,600 is suspended

  • 20 employees contravened the BCII Act. The penalty for these employees was $9000 of which $6,000 is suspended, and four employees who failed to file an appearance or defence also contravened the legislation. The penalty for two of these employees was $10,000, of which $6,750 was suspended. The penalty for the other two employees was $9,000 of which $6,000 was suspended. These employees were ordered to pay $5,000 costs each.

Background:

On 5 July 2006, the ABCC filed proceedings in the Perth registry of the Federal Court against 107 employees working on the Perth to Mandurah Railway Project.

The statement of claim alleged that from 24 February 2006 to 3 March 2006 on the section of the railway known as New Metro Rail City Project - Package F:

  • 107 employees contravened section 38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) by taking unlawful industrial action; and

  • 82 employees breached an order to the Australian Industrial Relations Commission (AIRC) made pursuant to s.127 of the Workplace Relations Act 2006. The order directed the Construction Forestry Mining and Energy Union (CFMEU) and its members employed on the Package F to not take industrial action.

The ABCC sought:

  • a declaration that each of the employees engaged in unlawful industrial action

  • a declaration that employees served with the AIRC order breached the terms of the order

  • and penalties for the contraventions.

The maximim penalties that could be imposed against each employee are $22,000 for a contravention of s.38 of the BCII Act and $6,000 for a contravention of the AIRC order.

The employees were on strike for seven days commencing on 24 February 2006. They returned to work on 8 March 2006. The issue that precipitated the strike was the termination of a union shop steward on the Project.

The strike occurred before the WorkChoices amendments commenced and the ABCC proceedings relied on the pre-WorkChoices legislation.

The employees' union the CFMEU was not subject to the proceedings. A union official addressed the stopwork meetings associated with the case. The union submitted court statements that the official advised the employees they were exposed to severe penalties by taking strike action and recommended a return to work. The employees rejected this recommendation on more than one occasion.

72nd Respondent

On 27 November 2006, Nicholson J. granted leave to an industrial advocate, Paul King, to represent the 72nd respondent as his advocate in the Federal Court until further orders. The ABCC did not oppose the grant of leave.

The proceedings between Paul Ruiz, the 72nd respondent and the applicant, Deputy ABC Commissioner Hadgkiss, were discontinued on 4 October 2007. Consent orders were filed with the Court which also dismissed the counter claim for unspecified damages filed by the 72nd respondent. There was no order as to costs.

Directions hearing 24 October 2007:

Fifty-eight respondents admitted that between 24 February and 3 March 2006, they:

  • engaged in unlawful industrial action contrary to s.38 of the Building and Construction Industry Improvement Act 2005 (BCII Act), and

  • breached an order of the Australian Industrial Relations Commission (AIRC) contrary to s.178 of the
    Workplace Relations Act 2006 (WR Act).

A further nine respondents admitted the above contraventions on a supplementary agreed facts.

A further twenty respondents admitted that between 24 February and 3 March 2006, they engaged in unlawful industrial action contrary to s.38 of the BCII Act.

Penalty hearing 5 November 2007:

A penalty hearing for all 87 respondents who admitted to the breaches was held on 5 November 2007. Gilmour J. reserved his decision on penalty.

Proceedings have been discontinued against 14 respondents (including Mr Ruiz). There was no order as to costs in favour of either party.

Of the remaining respondents:

  • four respondents failed to file either an appearance or defence – a penalty hearing for these respondents took place on 14 November 2007; and

  • two respondents were unable to be served.