John Draffin v Construction Forestry Mining and Energy Union (CFMEU), Steve Allen, Gerry Benstead, Bill Oliver and Walton Constructions Pty Ltd (Walton)

Applicant: Assistant ABC Commissioner John Draffin

Respondent(s): CFMEU, Steve Allen, Gerard Benstead, Bill Oliver, Walton Construction Pty Ltd

Date filed: 20 March 2007

Court Findings:

The Federal Court of Australia found Walton contravened section 45 of the BCII Act at the Brunswick Police Station site by discriminating against Monjon Traffic Services Pty Ltd (Monjon) because Monjon’s employees were engaged on AWA’s and contravened section 298K of the Workplace Relations Act 1996 (WR Act) by terminating Monjon’s engagement at the Brunswick police station site, Melbourne in November 2005.

The Court also found the CFMEU and its officials Mr Benstead and Mr Oliver and site delegate Mr Allen contravened section 43 by requesting Walton not to continue to engage Monjon at the site, section 45 of the BCII Act and s298P of the Workplace Relations Act by discriminating against Monjon on the basis of its workplace arrangements.

Court Outcome:

On 10 December 2007 Marshall J imposed penalties of $50,000 on Walton.

On 17 March 2009 total penalties of $20,750 were imposed on the CFMEU. A penalty of $2000 was imposed on each Mr Benstead and Mr Oliver to be fully suspended for 12 months.  No penalty was imposed on Mr Allen.

The applicant appealed the decision on 17 March 2009 to the Full Court on the grounds that the Court took into account irrelevant considerations in reaching that decision and that the penalties were manifestly inadequate.         

On 10 September 2009, the Full Court of the Federal Court increased the total penalties imposed on the CFMEU to $52,750 and  increased the total penalties imposed on each of Mr Benstead and Mr Oliver to $10,000, with half of those penalties suspended for 12 months. The Full Court also imposed penalties totalling $10,000 on Mr Allen, with half of those penalties suspended for 12 months. 

the penalty judgement can be viewed at: http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/2011.html

the liability judgement can be viewed at: http://www.austlii.edu.au/au/cases/cth/FCA/2009/243.html

the appeal can be viewed at: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/120.html