Case name
Australian Building and Construction Commissioner v Daniel Barker & Anor
Known as
Zest Apartments
Commonwealth Courts Portal reference and link

BRG854/2016

Applicant

Australian Building and Construction Commissioner

Respondent(s) at time of filing

CFMEU, Daniel Barker

Date filed
19 September 2016
State/Territory
QLD
Breach(es) found
Misrepresentation of workplace rights
Status
Finalised
Link to liability judgement

Australian Building and Construction Commissioner v Barker & Anor [2017] FCCA 1143 (30 May 2017)

Summary of court decision

The ABCC* commenced proceedings in the Federal Circuit Court against the CFMEU and its officer Daniel Barker, alleging that two Brisbane construction workers were told they could not work on a project unless they paid fees to the CFMEU.

The CFMEU and Daniel Barker admitted the following conduct as contraventions of the misrepresentation provisions of the Fair Work Act 2009:

  • Before attending a site induction, the first worker was asked by Mr Barker for his name and date of birth. The worker supplied this information to Mr Barker.
  • Following the induction, Mr Barker told the worker that he owed $1,290 in union fees and had to pay this amount in order to work on the site.
  • When the worker said he did not have the money as he had only recently returned from overseas, Mr Barker made a phone call after which he told the worker to pay $520.
  • The worker said he could not pay that amount, but was willing to pay forty or fifty dollars per week. Mr Barker told the worker that either he or his employer needed to pay the $520 or the worker could not work on the site.
  • The worker did not pay the fees and left the site without performing any work.
  • The second worker began work on the site as scheduled but was approached and asked for his name and date of birth by Mr Barker after a scheduled break.
  • After making a phone call to do a “credit check” on the worker, Mr Barker told him that his CFMEU membership had run out and he now owed $1,290 in fees.
  • The worker responded that he did not think payment was justified as he was only on the site for two days. Mr Barker told him that “if you don’t want to pay the fees, you cannot work on site”. The worker left the site without performing any further work.
  • When asked by the site manager why he was sending workers away from the site, Mr Barker said “They’re not in the union and they won’t join and they can’t be on site, this is an EBA site”. The site manager responded that the workers had a right to not be in the union and to work on the site, to which Mr Barker replied “No, everybody’s got to be in the union, this is an EBA site”.

On 30 May 2017, the Court found that Mr Barker’s actions amounted to two contraventions of the misrepresentation provisions of the Fair Work Act. In addition, the CFMEU twice contravened those same contraventions by virtue of Mr Baker’s conduct.

In handing down the judgment Judge Jarrett said the contraventions were serious because they had deprived two men of the right to work. He added:

“Union officials, delegates and other agents of industrial unions must be sent a message that their first duty is to obey the industrial laws of this country rather than the instructions given to them by their superiors further up the union hierarchy.”

*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

$80,000

Daniel Barker

$6,000

Total

$86,000

Total penalities

$86,000

Related content

Media release: CFMEU penalised $86,000 after trying to force Qld workers to join the union