Case name
Australian Building and Construction Commission v Michael McDermott & ors
Known as
Ergo Apartments
Commonwealth Courts Portal reference and link

SAD58/2015

Applicant

Australian Building and Construction Commissioner

Respondent(s) at time of filing

CFMEU, CFMEU NSW, Michael McDermott, Anthony Sloane, Aaron Cartledge

Date filed
31 March 2015
State/Territory
SA
Breach(es) found
Non-compliance with right of entry laws
Status
Finalised
Link to liability judgement

Australian Building and Construction Commissioner v McDermott [2016] FCA 1147

Link to penalty judgement

Australian Building and Construction Commissioner v McDermott (No 3) [2018] FCA 1105

Link to Federal Court appeal judgement

Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797 on liability

Summary of court decision

The Federal Court imposed penalties totalling $137,590 against the CFMMEU and its three officials for unlawfully entering an Adelaide worksite on four occasions between April and July 2014.

Mr McDermott admitted he unlawfully entered the work site on Sturt Street on four occasions, while Mr Cartledge admitted to unlawfully entering the site on one occasion.

Following a contested trial, the Court found Mr Sloane unlawfully entered the site on one occasion. The court also found the CFMMEU liable for the unlawful conduct of each of the named officials.

In her decision Justice Charlesworth said:

“The CFMMEU’s history of non-compliance is properly described as reprehensible.

“The contraventions involved a blatant and deliberate disregard of the requirements of the law.”

The Court’s findings in relation to the conduct of the Union officials was as follows:

Mr Sloane

“Mr Sloane has demonstrated no appreciation of the importance of observing the conditions attaching to the privileges afforded the holder of a permit.

“Like Mr McDermott, Mr Sloane consciously chose to advance the interests of the Union and its members, as he perceived them, over the requirements of the law.

“It is the mental attitude accompanying Mr Sloane’s contravention, together with the lack of evidence that his mental attitude has or will change in the future, that in my view justifies a higher penalty.

Mr McDermott

“The circumstances in which the contravention occurred do, however, involve a display of mockery and defiance on Mr McDermott’s part.

“Mr McDermott’s attitude accompanying this contravention is appropriately described as cavalier and aloof. This is, I find, a blatant contravention involving a knowing and deliberate departure from the law.

Mr Cartledge

“Mr Cartledge intended to convey … that he and Mr McDermott would enter the site notwithstanding (the occupier’s) insistence that they observe the requirements of the Act. His statements that he would “turn a blind eye” to purported safety concerns …

“Mr Cartledge adopted an attitude that he could and would ignore the requirements of the Act in their application to permit holders as and when it suited him, and yet he impliedly threatened action pursuant to the same Act in his dealings with (the occupier).

“The contravention was accompanied by a seriously deficient attitude on Mr Cartledge’s part toward the importance of complying with the law.”

Penalities

Penalties awarded against

Penalties awarded

CFMMEU;

$116,790

State Assistant Secretary Michael McDermott

$14,300

State Secretary Aaron Cartledge

$3,500

CFMMEU NSW official Anthony Sloane

$3,000

Total

$137,590

Total penalities

$137,590