Case name
Australian Building and Construction Commissioner v Brian Parker & Ors
Known as
The Barangaroo South Case
Commonwealth Courts Portal reference and link

NSD467/2016

Applicant

Australian Building and Construction Commissioner

Respondent(s) at time of filing

CFMEU, CFMEU NSW, Brian Parker, Richard Auimatagi, Luke Collier, Peter Genovese, Michael Greenfield, Darren Greenfield, Robert Kera, Danny Reeves, Tony Sloane, Darren Taylor

Date filed
5 April 2016
State/Territory
NSW
Breach(es) found
Coercion, Failure to comply with a term of an enterprise agreement, Industrial action
Status
Under appeal
Link to liability judgement

Australian Building and Construction Commission v Parker & Ors [2017] FCA 564

Link to penalty judgement

Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082

Summary of court decision

The ABCC* commenced proceedings in the Federal Court against the CFMEU and ten of its officials, including State Secretary Brian Parker, over allegations of unlawful industrial action and coercive action orchestrated and taken in support of a CFMEU delegate who allegedly pushed and verbally abused a Lend Lease worker.

In May 2017, Justice Flick of the Federal Court found that nine of the ten officials—Parker, Kera, Reeves, Collier, Darren Greenfield, Michael Greenfield, Auimatagi, Sloane and Taylor—along with the CFMEU national body and its NSW branch, contravened various provisions of the Fair Work Act 2009 that prohibited the organisation or taking of industrial action, and prohibited coercion.

The unlawful conduct in this case involved the organising of unlawful industrial action by 600 to 1000 workers on the Barangaroo site, and several instances of offensive and derogatory conduct aimed at both those who sought to do work and at ABCC inspectors.

Justice Flick found that when Parker addressed workers after the Fair Work Commission had issued orders to stop the industrial action and for work to resume, Parker attempted to "incite or encourage" workers to stay out.

The judge also said a "revealing exchange" between Mr Parker and a female police officer “expose[d his] objective of presenting to the workers in the vicinity that the union would even take on the police to achieve [its] objectives".

The judge made a number of factual findings including:

  • that Luke Collier attempted to intimidate inspectors who attended the site, including by calling out an inspectors’ mobile phone number to a crowd over a loudspeaker and inviting them to call the inspector; and
  • employees who sought to go to work were called: “F****ing dog” and “scum
  • Mr Parker addressed workers on the site through a loudhailer and described ABCC inspectors as: “sorry excuses for human beings”
  • A number of CFMEU officials repeatedly referred to ABCC inspectors as “dogs”.
  • An ABCC inspector reported that Collier said: “We’re starting a dog wash over here.”
  • Darren Greenfield said: “Don’t stand too close Mick, they have fleas. They’re dogs.”

calling out: “You’re a f***ing grub, why are you here, go away. You’re lower than a paedophile you grub.”

Justice Flick also accepted the evidence of a female police constable in relation to her interactions with Mr Parker. The female police constable described Mr Parker’s “body language” as “standing tall, he had broad shoulders, he was leaning down and toward me, his eyes were wide as if he was trying to stare me down”.

She described Mr Parker’s body language as follows:

“He made sure that I was feeling either intimidated or scared.”

“…in my line of work we deal with people like him a lot.”

“When someone is trying to intimidate another person they do certain actions to intimidate a person.”

About the approach to the police officer, the Court found:

“The exchange with the police Constable formed part of the background factual context in which it can readily be concluded that Mr Parker was deliberately setting out to create an atmosphere of defiance, even as against those charged with enforcing the law.”

On 24 November 2017, the Federal Court made orders imposed at total penalty of $2,471,300 on the respondents.

Justice Flick also determined that four CFMEU officials should be referred to the Commonwealth Director of Public Prosecutions for allegedly giving false testimony during the proceedings.

In finding that maximum penalties should be imposed on the CFMEU, Justice Flick said:

“The CFMEU has long demonstrated by its conduct that it pays but little regard to compliance with the law and indeed has repeatedly sought to place itself above the law.

“The CFMEU is to be regarded as a recidivist offender.

“It is difficult, if not impossible, to envisage any worse conduct than that pursued by the CFMEU.

“The CFMEU assumes a prominent role in the industrial affairs of this country and has consistently exhibited a contempt for compliance with the law.

“The conduct of its officers and employees has consistently shown a total contempt for the rights of occupiers and a total contempt for the constraints imposed by the law.

“It is difficult to perceive how such conduct can be regarded as in the best interests of the bulk of its members and the workers it supposedly represents. Such conduct may promote the CFMEU as a militant union.

“The judge said it was “not possible to envisage worse union behaviour”.

The CFMEU’s conduct exposes a cavalier disregard for the prior penalties imposed by this Court and exposes the fact that such prior impositions have failed to act a deterrent against further unlawful industrial action.

The Judge also ordered the CFMEU to publish notices in two Sydney newspapers (The Sydney Morning Herald and The Daily Telegraph) and the CFMEU’s journal about the unlawful conduct of its officials.

The respondents are currently appealing numerous aspects of the Judge’s liability decision, and are contesting the penalties that were imposed.

*This matter was originally filed by Fair Work Building and Construction (FWBC). On 2 December 2016, FWBC became the ABCC.

Penalities

Penalties awarded against

Penalties awarded

CFMEU

$1,326,000

CFMEU NSW

$956,250

Brian Parker

$45,400

Robert Kera

$41,250

Danny Reeves

$41,000

Luke Collier

$40,400

Anthony Sloane

$5,500

Darren Greenfield

$5,000

Darren Taylor

$4,500

Richard Auimatagi

$3,000

Michael Greenfield

$3,000

Total

$2,471,300

Total penalities

$2,471,300

Related content

Media release: Court to impose maximum penalties of over $1 million for “worse union behaviour” and refers CFMEU officials to DPP for investigation into false testimony