Hadgkiss v Sunland Constructions, Eshraghi, CFMEU, CFMEU (QLD) and Oskam
Applicant: ABCC Inspector Nigel Hadgkiss
Respondent(s): Sunland Constructions (Qld) Pty Ltd, Saied Eshraghi, CFMEU, CFMEU (QLD), Danny Oskam
Date filed: 14 December 2005
On 26 March 2007 the Federal Court in Brisbane ordered the CFMEU and the CFMEU Queensland to pay penalties of $6,000 and $3,000 respectively for making false and misleading statements to three employees at a Gold Coast spray paint shop about their obligation to join the union.
The unions were found to have contravened the freedom of association provisions of the pre-reform Workplace Relations Act 1996. Danny Oskam, the union delegate who told the workers they could not work for Sunland Constructions Pty Ltd unless they joined the unions, was ordered to pay a penalty of $300.
Keifel J also made compensation orders against both unions requiring them to pay two of the employees $200 each and the other employee the sum of $50. These amounts represent a refund for union membership fees that they had been forced to pay.
Penalty of $1,000 imposed on Mr Eshraghi, and penalties of $3,000 and $12,000 imposed on Sunland respectively on 29 November 2006.
Penalties have been imposed in what has become the first Taskforce/ABCC prosecution to proceed to the Federal Court in Queensland. On 25 October 2006, Dowsett J penalised Eshraghi $1,000 for the breach of s.298SC, while Sunland was penalised $3,000 for the breach of s.298SC and $12,000 for the breach of s.298K. Sunland and Eshraghi had admitted the contraventions in an Agreed Statement of Facts.
His Honour made the following declarations:
that Eshraghi committed a contravention of s.298SC by making a false and misleading statement concerning the worker's obligation to join the Union, and
that Sunland contravened s.298SC because of the actions of Eshraghi who was a mid-level manager of Sunland.
Sunland was found to also have committed a contravention of s.298K in that it terminated the employment of worker for a prohibited reason, one of the reasons being that he had resigned his Union membership.
The total fines payable by Sunland were against a maximum fine of $33,000 and took into account Sunland's admission of the contravention and the fact they had no prior beaches.
The Court accepted written undertakings from Sunland concerning a compliance training program for staff covering freedom of association. The fines were payable within 28 days to consolidated revenue.
Kiefel J. heard the case against the CFMEU, the CFMEU (Q) and their delegate, Danny Oskam, in Brisbane on 24 and 25 October 2006. The decision was reserved.
On 14 March 2007, her Honour handed down the reserved judgement and found that the statements made by the union delegate to three employees, that they were obliged to join the union, were false and misleading.
The ABCC commenced proceedings against Sunland Constructions, its manager Saied Eshrajhi, the Federal and Queensland branches of the CFMEU and union delegate, Daniel Oskam alleging that between September and December 2004, the CFMEU and Mr Oskam made false and misleading statements that three employees were obliged to join the CFMEU. Further, the ABCC alleged that Sunland Constructions and its manager, Saied Eshraghi, made false and misleading statements about one complainant's obligation to join the CFMEU and that Sunland unlawfully dismissed one complainant because he resigned from the CFMEU. An appeal by the CFMEU and Mr Oskam was dismissed on 20 December 2007.