The ACT Branch of the CFMMEU and three of its officials have been penalised a total of $159,600 after the Federal Court found they engaged in unlawful picketing at a Canberra building site in May 2018.
The Court ordered the officials, CFMMEU ACT secretary Jason O’Mara; Assistant Secretary Zachary Smith; and organiser Joshua Bolitho to personally pay the penalties ordered against them. The Court orders prevent the union from paying their penalties for them.
The unlawful conduct occurred on the $300 million Constitution Place Project – a 12 level commercial project in the heart of Canberra.
From around 5.30am on 15 May 2018, cars were parked in front of the main entrance to the building site. CFMMEU officials Jason O’Mara; and Zachary Smith; and organiser Joshua Bolitho, together with a group of 20 other people linked arms at the main entrance blocking pedestrian and vehicle access through the main entrance gate.
Site management requested the cars, which were registered to the CFMMEU, be removed but were told by the CFMMEU officials they could not find their keys.
Locks and chains were also placed on entrance gates preventing access to the site. A bus carrying a group of workers was unable to access the site.
Project management was forced to use bolt cutters to gain access through the gates and police were called to the site. The unlawful picketing lasted for two hours.
Justice Katzman said of the CFMMEU’s action:
“It is evident that neither the penalties imposed in the past nor the repeated imposition of penalties has had any deterrent effect. Indeed, it is reasonable to infer that the Union takes the view that paying penalties is merely a cost of doing business. In the absence of evidence to the contrary and in the light of its appalling record, the inference is open that the Union has done nothing to encourage its officers and employees to comply with laws that stand in the way of its industrial objectives. There was no suggestion, let alone evidence, to indicate that the Union has established any systems or processes to ensure that its officers or employees comply with the law.”
The judgment noted, as with previous cases, the absence of contrition or remorse:
‘The respondents eschewed any notion that they were entitled to any leniency because their admissions represented an acceptance of wrongdoing, let alone a “suitable and credible expression of regret”. Indeed, none of the respondents offered an apology or exhibited any contrition.”
In ordering all three CFMMEU officials to personally pay their penalties Justice Katzman said:
“I accept that the conduct of the union officials was serious. The combination of the deliberate obstruction of entry to the project site, the refusal to remove vehicles when asked, and the use of chains and locks without authorisation from the site’s occupiers puts the contraventions in the serious category. “
“… None of the men expressed contrition or gave any indication that he would not reoffend if the opportunity arose again. Unless the burden is imposed on them, they will not feel any sting of the Court’s orders. As long as the union officials can look to the Union to pay the penalties or reimburse them, they have little incentive not to reoffend. Requiring them to pay the penalties personally serves as a deterrent, not only to them but also to others in similar positions. It will bring home to them that they cannot act in contravention of the Act secure in the knowledge or belief that the Union will pick up the tab.”
ABCC Commissioner Stephen McBurney said:
“In December 2016, the Federal Parliament passed laws to address unlawful picketing in the building and construction industry. The ABCC was given specific responsibility to investigate and litigate this provision owing to the prevalence of picketing as an industrial tactic,” Mr McBurney said.
“This is the second decision of the Federal Court concerning the unlawful picketing provisions of the Act. On 6 December 2019, the Federal Court handed down penalties of $270,000 against the CFMMEU for unlawfully picketing two Melbourne construction sites in 2017. The ABCC has filed a further three cases alleging unlawful picketing by the CFMMEU and its officials.
“This case is a further example of the Union taking the law into its own hands. There was a clear alternative and lawful path to follow, this was the dispute resolution clause in the relevant enterprise agreement, but the Union was not prepared to wait to allow the agreed procedure to run its course. The judgement states:
“It is troubling that the Union saw fit to insist on (the contractor’s) compliance with federal workplace laws when its officials behaved as though they were above the law. Notwithstanding their motivations, their participation in an unlawful picket tends to undermine the Union’s moral authority in its campaign for wage justice. In this respect, their action may well have been counterproductive.”
“Unlawful picketing has been a focus for the ABCC. I encourage any building industry participant who is subject to unlawful picketing to report it to the ABCC. Our inspectors will respond immediately and use the full suite of enforcement tools available to us to address unlawful conduct.”