Case name
Australian Building and Construction Commissioner v Michael McDermott & Ors
Known as
South Terrace construction site
Commonwealth Courts Portal reference and link

SAD39/2016

Applicant
Australian Building and Construction Commissioner
Respondent(s) at time of filing
CFMMEU, Michael McDermott, Mark Gava, James O’Connor
Date filed
11 February 2016
State/Territory
SA
Breach(es) found
Coercion
Status
Current
Link to liability judgment

Australian Building and Construction Commissioner v McDermott (No 2) [2018] FCA 1611

Summary of court decision

The ABCC* commenced proceedings in the Federal Court against the CFMEU, South Australian Assistant Secretary Michael McDermott and officials Mark Gava and Jimmy O’Connor for allegedly threatening to shut down the South Terrace construction site in Adelaide. Mr Gava also allegedly physically confronted the site’s project manager, damaging the project manager’s property in the process.

In a statement of claim filed in the Federal Court, the ABCC alleged:

  • On 30 November 2015, Mr McDermott entered the site and claimed it was not up to standard, calling for a larger lunchroom with a separate office and a plumbed toilet or he would shut the site down.
  • Subsequently, on 4 December 2015, SafeWork SA inspected the site’s amenities and found they were in fact compliant with legislation. The site’s project manager phoned Mr Gava to inform him of the outcome.
  • Despite the outcome of the SafeWork SA inspection, Mr Gava and Mr O’Connor entered the site on 9 December 2015 where they repeated the threat to shut the site down.
  • Following the stop-work meeting, Mr Gava and Mr O’Connor became aggressive toward the site manager when attempting to retrieve their WHS notices. Mr Gava lunged at the site manager, grabbing his left wrist and attempting to pull the notices out of the site manager’s front pocket.
  • As a result of the alleged physical altercation, the site manager was pushed into a fence and his wrist watch was damaged. South Australia Police were notified of the incident.

In a liability judgment on 26 October 2018, the Federal Court found that Mr Gava had contravened right of entry provisions in the Fair Work Act. The CFMMEU was found liable for Mr Gava's contravention.

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

Current ABCC case URL

Australian Building and Construction Commissioner v Michael McDermott & Ors