Marcus Clarke v Construction Forestry, Mining and Energy Union (CFMEU), Walter Molina and Michael Powell

Applicant: ABCC Inspector Marcus Clarke

Respondent(s): CFMEU, Walter Molina and Michael Powell

Date filed: 31 October 2004

Court Findings:

The Western Australian Industrial Magistrates Court found that the Respondents engaged in industrial action for the purpose of supporting or advancing claims against the employer in breach of s.170MN of the Workplace Relations Act 1996. Additionally the Magistrate found the Respondents failed to comply with the Dispute Settlement Procedure of the relevant Certified Agreement. The contraventions related to events at the Barclay Mowlem Railway Station site in WA over several days in July and August 2004.

CFMEU organisers, Michael Powell and Walter Molina attended meetings with employees working at the site on 9 July 2004, 29 July 2004 and 19 August 2004. As a consequence of each meetings these employees took industrial action.

Court Outcome:

The Court imposed penalties of $6,000 on the CFMEU. Mr Powell and Mr Molina were penalised $1,500 and $1,000 respectively.

view the reported case at:  http://www.austlii.edu.au/au/cases/wa/WAIRComm/2005/1509.html

 The Respondents appealed. Nicholson J of the Federal Court dismissed the appeal.

The appeal to the Federal Court is available at: http://www.austlii.edu.au/au/cases/cth/FCA/2006/245.html

The CFMEU filed a further appeal to the Full Court of the Federal Court of Australia. The Full Court unanimously upheld the appeal and dismissed the proceedings. The penalties were set aside.

 The decision of the Full Court of the Federal Court is available at: http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/87.html