Case name
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors
Known as
The BKH Case
Commonwealth Courts Portal reference and link

NSD361/2016

Applicant
Australian Building and Construction Commissioner
Respondent(s) at time of filing
CFMEU, Luke Collier, Ben Garvey, Michael Greenfield, Darren Greenfield, Rebel Hanlon, Brendan Holl, Robert Kera, Benito Manna, Brian Parker, Mansour Razgahi, Tom Rigby, Tony Sloane, Darren Taylor
Date filed
State/Territory
NSW
Breach(es) found
Adverse action, Coercion, Non-compliance with right of entry laws
Status
Finalised
Date finalised
Link to liability judgment

Australian Building and Construction Commissioner v CFMEU & Ors [2018] FCA 42

Full Court appeal Commonwealth Courts Portal reference and link

NSD2247/2018

Link to Federal Court appeal judgment

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS v AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Summary of court decision

The Full Federal Court on 14 February largely dismissed the CFMMEU’s appeal against penalties handed down in the October 2018 BKH judgment.

Only three out of 15 appeal grounds were upheld in today’s decision. Two of the grounds related to orders to publish details of the contraventions and penalties imposed on the union.

In November 2018, the Federal Court ordered the CFMMEU and seven of its officers to pay penalties of $313,000 for their unlawful conduct against a number of concreting companies at construction sites in Sydney in 2014 and 2015.

The Federal Court found the CFMMEU and senior officers, including former NSW State Secretary Brian Parker; Assistant State Secretary Robert Kera and organiser Luke Collier took action against a group of concreting companies to coerce them to make an enterprise agreement with the union.

Conduct of Mr Collier

The Full Court considered the conduct of Mr Collier. The CFMMEU argued the declarations and penalty orders against Mr Collier and the CFMMEU should be set aside.

The Full Court noted:

  • Mr Collier disrupted a concrete pour at the Rhodes site on 11 March 2015
  • Used CFMMEU cars to block access to the site
  • 30 concrete trucks were scheduled to deliver 220 cubic metres of concrete
  • The end result was that a significant part of the concrete had to be jackhammered out and re-poured.

The Full Court noted the primary judge’s finding that there were no genuine safety concerns to justify the union’s conduct on that day.

The penalties imposed on Mr Collier, Mr Kera, Mr Parker, Mr Razgahi, Mr Greenfield, Mr Manna, Mr Garvey and the CFMMEU were reaffirmed by the Full Court. Mr Taylor's penalty was reduced from $11,000 to $8,000, taking total penalties for the CFMMEU and its respondents to $310,000.

Background to BKH case

At a meeting with a number of concreting subcontractors on 5 June 2014, CFMMEU official Darren Taylor threatened to “smash” the jobs of one of the subcontractors so the other contractors would “know what is coming”.

Mr Taylor told the subcontractors if they didn’t sign an agreement with the CFMMEU it would “pick one of you and come after you”.

Following the meeting CFMMEU Assistant Secretary Robert Kera sent a threatening text message reading “Eenie meenie miney mo!” to a contractor who had attended the meeting.

When handing down his October 2018 judgment Justice Flick said:

“The conduct… evidences a continuing commitment on the part of the CFMEU to pursue its industrial objectives by unlawful means and a continuing commitment to pay such penalties as are imposed as but the “cost of doing business”.

 

Penalties
Penalties awarded against Penalties awarded
CFMMEU $237,000
Luke Collier

$20,000

Robert Kera

$20,000

Darren Taylor

$8,000

Brian Parker

$8,000

Mansour Razaghi

$8,000

Benito Manna

$6,000

Ben Garvey

$2,500

Total $310,000

 

Total Penalties

$310,000

Related content

Media release - CFMMEU fined $313,000 and ordered to take out advertisement for threatening to “smash” contractors

Media release - Union's appeal fails in BKH matter in NSW