The Full Federal Court has today largely dismissed the CFMMEU’s appeal against penalties handed down in the October 2018 BKH judgment.
Only three out of 15 appeal grounds were upheld in today’s decision. Two of the grounds related to orders to publish details of the contraventions and penalties imposed on the union.
In November 2018, the Federal Court ordered the CFMMEU and seven of its officers to pay penalties of $313,000 for their unlawful conduct against a number of concreting companies at construction sites in Sydney in 2014 and 2015.
The Federal Court found the CFMMEU and senior officers, including former NSW State Secretary Brian Parker; Assistant State Secretary Robert Kera and organiser Luke Collier took action against a group of concreting companies to coerce them to make an enterprise agreement with the union.
Speaking about today’s Full Federal Court decision, ABCC Commissioner Stephen McBurney said: “The Full Court’s judgment reaffirms the seriousness of the union’s contraventions.
“Today’s decision represents an endorsement of the case presented by the ABCC in the Federal Court and on appeal.”
Conduct of Mr Collier
The Full Court considered the conduct of Mr Collier. The CFMMEU argued the declarations and penalty orders against Mr Collier and the CFMMEU should be set aside.
The Full Court noted:
- Mr Collier disrupted a concrete pour at the Rhodes site on 11 March 2015
- Used CFMMEU cars to block access to the site
- 30 concrete trucks were scheduled to deliver 220 cubic metres of concrete
- The end result was that a significant part of the concrete had to be jackhammered out and re-poured.
The Full Court noted the primary judge’s finding that there were no genuine safety concerns to justify the union’s conduct on that day.
The penalties imposed on Mr Collier, Mr Kera, Mr Parker, Mr Razgahi, Mr Greenfield, Mr Manna, Mr Garvey and the CFMMEU have been affirmed by the Full Court.
Background to BKH case
At a meeting with a number of concreting subcontractors on 5 June 2014, CFMMEU official Darren Taylor threatened to “smash” the jobs of one of the subcontractors so the other contractors would “know what is coming”.
Mr Taylor told the subcontractors if they didn’t sign an agreement with the CFMMEU it would “pick one of you and come after you”.
Following the meeting CFMMEU Assistant Secretary Robert Kera sent a threatening text message reading “Eenie meenie miney mo!” to a contractor who had attended the meeting.
When handing down his October 2018 judgment Justice Flick said:
"The conduct… evidences a continuing commitment on the part of the CFMEU to pursue its industrial objectives by unlawful means and a continuing commitment to pay such penalties as are imposed as but the “cost of doing business”.
At the time of the judgment, ABCC Commissioner Stephen McBurney said the case was another example of the CFMMEU disregarding safety and threatening the livelihood of contractors and subcontractors in order to achieve their industrial objectives.