March - April 2016 Industry Update
Court summary - Finalised matters
Since the last issue of Industry Update, four matters have been finalised in Court. Summaries of the matters are below.
"Sheer thuggery": CFMEU and official fined after intimidating workers
- The CFMEU and official Scott Vink have been dealt near maximum penalties of $48,000 and $9,000 respectively by the Federal Circuit Court for an incident that occurred at the Pacific Fair shopping centre redevelopment in Queensland in March 2014.
- The ugly incident, described as “sheer thuggery” by Judge Vasta, involved Mr Vink removing workers’ belongings from the site shed, including lunches from the refrigerator, and leaving them outside, before launching into an obscenity-laced tirade claiming workers who were not CFMEU members were not allowed to keep their lunch in site fridges.
- In handing down the penalty today, Judge Vasta said the only reason for Mr Vink’s behaviour was “to intimidate the employees and to reinforce to others at the building site the notion that non-union membership is not going to be tolerated”.
- The penalties are just shy of the maximum of $10,200 for an individual and $51,000 for an organisation with Judge Vasta giving minor discounts due the respondents admitting the contraventions.
- Mr Vink also had his Right of Entry Permits suspended for two years following the incident.
CFMEU and official fined $52,000: Judge described union record as "woeful"
- Penalties of $52,000 have been ordered against the CFMEU and one of its officials, Michael ‘Mick’ Myles for instigating unlawful industrial action at the $60 million Queensland University of Technology’s (QUT) Kelvin Grove project.
- Mr Myles instigated a work stoppage at the site when his demands for the site manager to be stood down from the project for the day were refused.
- Judge Jarrett found Mr Myles’ conduct to be “a deliberate and intentional disregard of workplace laws” which caused “delays, inconvenience and cost to (head contractor)”.
- Judge Jarrett also criticised the CFMEU’s prior record and expressed doubt over whether Mr Myles or the CFMEU would comply with workplace laws in the future.
- Mr Myles was penalised $7,000 for his conduct while the CFMEU was penalised $45,000.
$937,100 in penalties imposed on CFMEU for unlawful conduct across Adelaide
- The Federal Court on 22 April issued orders penalising the CFMEU and 15 of its officials a total of $937,100 in relation to seven cases stemming from unlawful conduct on building sites across Adelaide in 2014.
- The proceedings were initiated by FWBC after a spike in unlawful activity on South Australian construction sites saw 26 projects impacted by various CFMEU officials, including 19 who flew in from interstate.
- In one of the cases, the Court found that CFMEU officials threatened to cause major disruptions unless the CFMEU flag was flown from the crane hook, while in another matter an official was found to use his elbow and shoulder to push the project manager and gain entrance to the Quest apartment site.
- Justice White said he had previously described the CFMEU’s record as being dismal in the case of DFWBII v Stephenson (2014) and that description was just as apt now as it was then. “(The union’s prior history) bespeaks an attitude by the CFMEU of ignoring, if not defying, the law and a willingness to contravene it as and when it chooses,” he said.
CFMEU successfully appeal fine for “abusive and misleading” conduct
- The full bench of the Federal Court has upheld the CFMEU’s appeal against a $272,500 fine for an alleged breach of right of entry laws.
- FWBC alleged that CFMEU officials Chad Bragdon and Anthony Kong broke right of entry laws at a construction site at Sydney Domestic Airport, failing to produce their permits when asked and directing workers to stop a concrete pour.
- On 10 September 2015 the Federal Court handed down fines of $27,500 and $20,000 to Mr Kong and Mr Bragdon respectively, and $225,000 to the CFMEU. In handing down the decision, Justice Flick described the officials’ conduct as “contemptuous of the limits to their power and the people on site with whom they were dealing.”
- On 28 April the Court upheld the respondents’ appeal and dismissed the proceedings, finding that as it could not be established that the officials were seeking to exercise right-of-entry provisions to access the site, they could not be found in breach of those provisions.
- The decision has emphasised the need for site occupiers to ask union officials their reason for being onsite.
- FWBC is considering an appeal.