Case name
Director of the Fair Work Building Industry Inspectorate v J Hutchinson Pty Ltd & Ors
Known as
Arena Apartments
Commonwealth Courts Portal reference and link

BRG894/2014

Applicant
Australian Building and Construction Commissioner
Respondent(s) at time of filing
CFMMEU, J Hutchinson Pty Ltd T/A Hutchinson Builders, Michael Myles, Mark O’Brien
Date filed
13 October 2014
State/Territory
QLD
Breach(es) found
Industrial action
Status
Finalised
Summary of court decision

The Federal Circuit Court imposed total penalties of $35,700 against the CFMMEU and its representative Mark O’Brien and former official Michael Myles, after workers at a South Brisbane apartment site downed their tools in response to a visit by Queensland Government officers.

Hutchinson Builders was also penalised $1,200 for contravening strike pay provisions in the Fair Work Act after they made payments to each of their 10 employees who engaged in the unlawful industrial action. Following the ABCC launching a successful appeal on the basis it believed Hutchinson Builders' penalty was manifestly inadequate, the Federal Court on 7 May increased the company's penalty to $20,000.

Facts

  • On 9 December 2013, two inspectors from the Queensland Government’s then Building Construction Compliance Branch (BCCB) attended the $53 million Arena Apartment’s site to conduct an audit.
  • During the inspectors’ visit Mr Myles entered the site and directed a number of the employees to stop work and go to the lunch room.
  • When approached by employees of Hutchinson Builders about his presence on the site, Mr Myles said words to the effect: “This is what we do if these kind of people [BCCB inspectors] are on the job…our boys in the shed until they leave…end of story.” 
  • Mr Myles also told the team leader from Hutchinson words to the effect: “You’ve got to understand when they come here we’re going to pull everybody off the job”.
  • Mr Myles and Mr O’Brien addressed the employees in the lunchroom and following the meeting employees returned to work.
  • Mr Myles and Mr O’Brien then met with representatives of Hutchinson Builders who were told “if they [BCCB] step foot on any of your projects, we will be there within five minutes flat and we will be stopping the job and that’s a nationwide directive from the top”. 

In handing down the penalty judgment, Judge Jarrett said of the CFMMEU’s conduct:

“it is clear the [CFMMEU] has an abysmal history of non-compliance with industrial laws.”
“The conduct in these proceedings was plainly deliberate and was aimed at preventing or hindering the inspectors from the BCCB from conducting their work.”
“It was an attempt to thwart officers from the BCCB from carrying out their duties and it was a form of protest against [Hutchinson Builders’] conduct in inviting the BCCB to conduct the audit.”
“the relevant industrial action here did not arise out of any misplaced sense that there was some safety issue that needed to be investigated or other industrial issue that existed between the employer and its employees.”
 
On 15 March 2019, the ABCC filed an appeal to the Federal Court against the penalty decision relating to Hutchinson Builders. The Federal Court on 7 May 2019 upheld the ABCC's appeal and increased the penalty to $20,000.
 
Penalties
Penalties awarded againstPenalties awarded
CFMMEU$25,500
Michael Myles$5,100
Mark O'Brien$5,100
Total$35,700
Hutchinson Builders$20,000

 

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