In a landmark decision today, the Federal Court has for the first time handed down penalties of $270,000 against the CFMMEU for unlawfully picketing two Melbourne construction sites in 2017.
The case is the first judgment to impose penalties under the new provisions introduced by the Building and Construction Industry (Improving Productivity) Act which re-established the ABCC in 2016.
The Act introduced new provisions prohibiting unlawful picketing on Australian building and construction sites and significantly increased penalties to deter parties from taking unlawful industrial action.
The CFMMEU was penalised $215,000 and its organisers Kane Pearson $20,000, and John Perkovic $20,000. CFMMEU member Mario Raspudic was penalised $15,000.
The CFMMEU was also ordered to pay the ABCC’s legal costs.
The CFMMEU admitted to organising a blockade on 8 May 2017 during construction of two cold storage warehouses at NewCold, one of the southern hemisphere’s largest cold storage and distribution points for major food manufacturers.
Mr Perkovic and a group of other men blocked access to one site when they stood next to a CFMMEU SUV that was parked across the entry gate.
When told he was trespassing and asked to leave, Mr Perkovic and others surrounded two managers at the site with one of the group saying “P*ss off, we’re here, we’re staying.”
Around the same time, at the second NewCold site, Mr Pearson, Mr Raspudic and a group of other men stood next to another CFMMEU SUV parked across the driveway and restricted access to a number of concrete trucks, subcontractors, office staff and employees of a potential customer.
In his judgment, Justice O’Callaghan said:
… Mr Perkovic and Mr Kane behaved with an apparent sense of impunity, including when Mr Pearson said that the car was broken down and that he could not move it and when Mr Perkovic said that he had “lost” his car keys.
He went on to say of the CFMMEU:
…the CFMMEU is a large organisation with significant financial resources. It has a prior history that has been recorded and characterised in many decisions of this courts over many years…, demonstrating its apparent willingness to contravene industrial laws in a serious way. And, of course, there is the need for deterrence of an organisation of its size.
The CFMMEU was also criticised by the Court for “thumbing its nose” at the ABCC for refusing to comply with statutory notices to produce evidence.
ABCC Commissioner Stephen McBurney said: “This is the first case that has been decided under the new penalty regime aimed at deterring the unlawful conduct we see all too often on construction sites.
“The cost of doing business just went up for the Union. This landmark decision arises in a costs jurisdiction. The Court has ordered the legal costs incurred by the ABCC be paid for the by the Union.
“In the past three months alone, penalties imposed by the courts against the CFMMEU total more than $500,000.
“Since the agency’s re-establishment on 2 December 2016, the courts have penalised the CFMMEU almost $9 million.
“The unlawful picketing of a major food storage and distribution facility is now added to the history of contraventions for the CFMMEU that continue to occur with no expression of remorse or contrition. Significantly, there is no indication from the Union or its officials that they intend to rectify their conduct either in this case or more generally.”
The ABCC currently has two further cases involving unlawful picketing before the courts.
The introduction of industrial relations laws preventing unions from picketing and blockading construction sites follows the Myer Emporium blockade in 2012 that saw police horses attacked and a violent dispute at the Little Creatures Brewery site in Geelong in 2012.
Mr Perkovic and Mr Pearson both have a documented history of unlawful conduct.
In 2015, the Fair Work Commission revoked Mr Perkovic’s right of entry permit after he engaged in intimidatory and abusive conduct towards a building inspector. He was banned from applying for a new permit for 18 months.
In 2014, the Fair Work Commission found that Mr Pearson was no longer a fit and proper person to hold a right of entry permit as a result of contravening industrial laws on a number of occasions.
Mr Pearson was also convicted of intimidating building inspectors in 2016 and fined $3,200.