The Federal Court has penalised West Australian company Tyrone Construction Services Pty Ltd and its representative, Mr Alistair Adams, $96,000 over unlawful picketing of the Perth-based building site known as ‘Skypark’ in Leederville, Western Australia in 2019.
The Court found an unlawful picket of 12 to 20 individuals took place after a dispute arose over payments to be made to Tyrone Construction Services.
The individuals blocked the entrance, restricted access to other subcontractors and refused to move after requests by the head contractor.
The head contractor paid the amounts demanded later that day, with Mr Adams saying:
“We want our money and we aren't leaving until we get it. We'll be here twenty-four seven, all over the weekend, we'll camp if we have to. We'll go to your Riseley Street site and close that as well. We need this by 10:00am. We've put the CFMEU on notice and if we aren't paid, we'll call them and the media.”
The Court found that two weeks after the head contractor terminated their agreement with Tyrone, a group of 20 to 30 people blocked and restricted access to the Skypark site again.
A director from the head contractor attempted to walk through the group to access the site and was pushed away, stumbling against plastic chairs and falling to the ground. When the gates were unlocked, the group shouted ‘scabs’, ‘traitors’ and ‘scumbags’ at subcontractors as they entered the site.
In describing Mr Adams’ conduct Justice Colvin said:
“The conduct of Mr Adams on both occasions was deliberate, objectively serious and caused loss and damage.
“The conduct was planned and organised and was co-ordinated with demands for payment of disputed amounts. It continued despite requests for it to cease. It resulted in the payment to Tyrone of substantial amounts the liability for which was otherwise in dispute. It resulted in public disturbance.
“The proper course to be followed by Mr Adams was to cause Tyrone to bring legal claims for the disputed amounts. There is no matter raised by way of mitigation to provide any form of explanation as to why that course was not followed and instead that Mr Adams caused Tyrone to engage in the now admitted unlawful conduct.”
The Federal Court imposed penalties of $80,000 on Tyrone Construction Services and $16,000 on Mr Adams.
In handing down penalties, Justice Colvin said:
“The conduct was motivated to achieve the commercial object of securing payment of a disputed amount without resorting to due process and by conduct which undoubtedly was intimidating in both its object and effect. Synthesising the relevant matters, the penalty proposed by the Commissioner is appropriate having regard to the facts as agreed, the primary purpose of deterrence, the lack of any prior contravening conduct and the other matters to which I have referred.
“In all the circumstances, I accept the submission of the Commissioner that the penalty for each contravention by Tyrone should be $40,000.”
ABCC Commissioner Stephen McBurney said:
“In December 2016, the Federal Parliament passed laws to create the offence of 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.
“The Court’s decision sends a very strong message that unlawful picketing, regardless of whether it involves workers, unions or as in this case a subcontractor, will not be tolerated.
“This is the third decision of the Federal Court concerning the unlawful picketing provisions of the Act. In the previous two decisions, penalties of $270,000 and $149,600 were imposed by the Federal Court on the CFMMEU and its officials in Melbourne and Canberra.
“The common thread in these three cases was defiance of the law in the form of resort to unlawful picketing. As the Court noted, the respondents could have pursued a legal avenue for redress.
“To their credit, the respondents admitted the unlawful conduct, have no prior contraventions, and have implemented a training programme concerning compliance with the Act and best practice in debtor control and debtor collection.”