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
10 March 2016
State/Territory
NSW
Breach(es) found
Adverse action, Coercion, Non-compliance with right of entry laws
Status
Current
Link to liability judgement

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

Summary of court decision

On 18 October 2018, the Federal Court has today ordered the CFMMEU and seven of its officers to pay penalties totalling $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.

Part way through the liability proceeding a number of the respondents—namely, Brian Parker (then CFMEU NSW State Secretary), Robert Kera (CFMEU NSW Assistant State Secretary), former CFMEU NSW organiser Luke Collier and the CFMEU—made admissions to certain contraventions of s 343 and s 494 of the Fair Work Act 2009.

In addition, the Court found the CFMMEU and its officers had contravened right of entry laws by hindering and obstructing workers and acting in an improper manner.

At a meeting 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.

Mr Kera and Mr Parker participated in a blockade of the Wolli Creek Site on 16 March 2015. The Court found Mr Kera exercised a degree of control or supervision over other persons participating in the blockade on that day. Mr Kera also participated in a further blockade of the site on 17 March 2015.

Today’s judgment and the Court’s comments highlight the seriousness of the CFMMEU’s unlawful actions.

Justice Flick in his judgment said of the CFMMEU:

“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”.

Justice Flick also concluded that CFMEU organiser Luke Collier entered the site:

“not out of any genuine concern as to safety but for the purpose of being as disruptive as possible.”
Mr Collier was also said to have driven a vehicle very close to two persons and when told that he was “very close to hitting [them]” he responded: “[y]ou’re just a piece of shit.”

With regard to the text sent by Mr Kera Justice Flick said it:

“was sent by Mr Kera as a threat and a threat intended to reinforce the threat made earlier in the day by [CFMMEU official] Mr Taylor.”

In a significant ruling Justice Flick also ordered the CFMMEU to publish an advertisement of the fact that contraventions have been found and penalties imposed:

Advertisements of the kind envisaged will hopefully go some way the “preventing” further like contraventions of the Fair Work Act. At the very least, advertisements may cause individual union members to pause before pursuing unlawful conduct.

 

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

$20,000

Robert Kera

$20,000

Darren Taylor

$11,000

Brian Parker

$8,000

Mansour Razaghi

$8,000

Benito Manna

$6,000

Ben Garvey

$2,500

Total $313,000

 

Total penalities

$313,000

Related content

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