Hadgkiss v CFMEU, CFMEU (NSW Branch), Casper and Lane

Applicant: Deputy ABC Commissioner Nigel Hadgkiss 

Respondent(s): CFMEU, CFMEU (NSW), Edmund Casper and Michael Lane 

Date filed: 27 July 2005 

Outcome: 

CFMEU and CFMEU (NSW Branch) were penalised $15,000 each and union officials Michael Lane and Edmond Casper penalised $4,000 and $1,250 respectively. 

Background:

The ABCC alleged that during January and February 2004, the Federal CFMEU, the NSW Branch of the CFMEU and two officers, Edmond Casper and Michael Lane, breached the Workplace Relations Act 1996 (WR Act) when they made false and misleading statements to several plasterers that they were obliged to join a union to work on building sites at Fairy Meadow or Wollongong.

The ABCC also alleged that the officers threatened the contractor, who had hired the plasterers, to coerce it into making a union certified agreement. As a result the plasterers were asked to leave one site and did not obtain alternative work for some time.

Over 16 days from 17 July to 11 December 2006, this matter was heard in the Federal Court, with Justice Graham reserving his decision. 

On 9 February 2007, the court found that the officials had breached the former WR Act by making false and misleading statements. The decision on penalties and other orders was reserved until 26 March 2007.

Decisions: 

On 26 March 2007, Justice Graham ordered that declarations be made and penalties imposed in relation to the false and misleading statements made by Casper and Lane to workers that they were obliged to join the union in order to work on the building sites. These were breaches of s.298SC(c) of the WR Act, which guarantee freedom of association to employees and independent contractors 

Justice Graham made the following orders:

  • CFMEU delegate, Casper to pay a penalty of $1,250.

  • CFMEU official Lane to pay a total penalty of $2,000.

  • The Federal CFMEU to pay a total penalty of $10,000.

  • The CFMEU NSW State branch to pay a total penalty of $10,000.

The judge also ordered that both the State and Federal CFMEU destroy all copies of the CFMEU Code of Conduct for Union Delegates that contains the following words, or words to the effect:

"To ensure that all workers on site are financial members of the relevant union" 

Finally the judge ordered each of the unions to publish, at its own expense, on or before 20 April 2007, a full page advertisement correcting their false and misleading statements in the local newspaper, the Illawarra Mercury

The advertisements are to advise the public:

  • that workers have a choice about joining a union, and

  • that workers do not have to be a member of a union to work on a site.

These advertisements also need to communicate that they arose from a finding by the Federal Court that a union delegate and a representative had made false and misleading statements to workers at local building sites.

Both the ABCC and the unions have appealed various parts of the judge's decision and the imposition of these penalties is stayed until the CFMEU appeal is decided.

ABCC Appeal to the Full Court of the Federal Court - 5 March 2008

On 5 March 2008, the Full Court of the Federal Court upheld parts A and B of the ABCC's appeal as outlined below. The appeal of part C was dismissed.

A. On 17 February 2004, Mr Lane made a false and misleading statement to the Pro Finish foreman about the obligation of four plasterers to join the union

B. On 18 February 2004, Casper advised, encouraged or incited Innovation Interiors Pty Ltd to refuse to make use of the services of five plasterers because they were not members of the union, and 

C. On 17 February 2004, Mr Lane threatened to take industrial or other action with the intention to coerce the foreman of Pro Finish and Pro Finish to make an EBA with the union.

On 14 July 2008, Justice Graham of the Federal Court imposed additional penalties on the CFMEU, CFMEU (NSW Branch) and Mr Lane for making a false and misleading statement. The statement was made to a Pro Finish foreman about the obligation of four plasterers to join the union. 

The CFMEU and CFMEU (NSW Branch) were each penalised an additional $5,000, taking the total penalty imposed against them to $15,000 each. Mr Lane was penalised an additional $2,000, the maximum penalty at the time of the contravention. He had already been ordered to pay $2,000 by Graham J in the earlier judgment.

Justice Graham dismissed claims by the ABCC that Mr Casper had coerced Innovation Interiors to refuse to use the services of five plasterers because they were not union members.

Appeal by the CFMEU, CFMEU (NSW), Casper and Lane

The CFMEU, CFMEU (NSW), Casper and Lane also appealed to the Full Court of the Federal Court. 

On 26 February 2009 the Full Court unanimously dismissed the CFMEU's appeal against the severity of a $1,250 penalty imposed on Mr Edmond Casper. The union previously withdrew its appeal against the $34,000 imposed on the CFMEU, CFMEU (NSW) and Mr Michael Lane.

The Full Court overturned Justice Graham's earlier orders to destroy copies of the CFMEU delegate's code of conduct and publish a full page advertisement in the Illawarra Mercury.