CFMEU wins some, loses some — in court


CFMEU wins some, loses some — in court

Fines generally fair but not guilty on one count; Moving employees to related company — not opportunity to reduce wages; ‘Union site’ comment found misleading; Security card dispute — fines; Coercive behaviour found and fined.


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Fines generally fair but not guilty on one count; Moving employees to related company — not opportunity to reduce wages; ‘Union site’ comment found misleading; Security card dispute — fines; Coercive behaviour found and fined.
Fines generally fair but not guilty on one count
The Construction, Forestry, Mining and Energy Union appealed against two sets of orders handed down by a magistrate — relating to freedom of association findings and also false and misleading statements over allegedly forcing a building workers to join the union.
See WorkplaceInfo report on original decision at: CFMEU fined $49,550 over ‘coercion’.
Justice Ryan in the Federal Court found for the union on the freedom of association issue saying that on the balance of probabilities the union official did not engage in conduct that contravened s797. He set aside the finding and the orders penalising the union $24,775 and the official $6000.
Justice Ryan rejected the union’s arguments that the penalties imposed on the union and the official over false and misleading statements were manifestly excessive. 
— 75% of the maximum available imposed on the union — 91% of the maximum imposed on the official.
Moving employees to related company — not opportunity to reduce wages
The CFMEU successfully opposed an employer application under s320, to vary a transferring agreement to reduce wages that the employer would be required to pay when it took over a mobile pumping business.
Fair Work Australia emphasised that employers cannot use the Fair Work Act’s transfer of business provisions to reduce employees’ pay and conditions when they move employees to a new enterprise.
B.C. Meale’s Pty Ltd (BCM) sought to reduce the wages and allowances it would have to pay to 32 employees transferring to it from another company within the Brisbane Concrete Pumping Group.
The employees worked for a mobile concrete pumping business operated by another part of the group that had met financial problems due to growing competitive pressures within the industry.
The employer argued that a key reason for the company’s difficulties was that the enterprise agreement covering its workforce required it to uncompetitive pay rates and allowances and argued that FWA was empowered to reduce the entitlements under s320(2)(c), which provides that the tribunal can vary a transferable instrument ‘to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise’.
‘Working arrangements’ included the terms and conditions of employment contained in the agreement, including matters such as wages and allowances, the employer argued.
Terms not interchangeable
Senior Deputy President Richards said the terms ‘working arrangements’ and ‘terms and conditions of employment’ were not interchangeable:
‘The ordinary meaning of “working arrangements” appears to me to be no more than a reference to the way in which the work that is required to be performed is arranged …
In effect, therefore, the scope of the meaning of “working arrangements” goes to such operational matters as the span of hours, rosters, shifts, cribs breaks and their structures and perhaps RDOs and so forth …
... [this interpretation is] supported by the fact that parliament had explicitly referred to “terms and conditions” in other parts of the Act, such as s65, but had adopted other words in s320(2)(c) …’
‘Union site’ comment found misleading
Federal Magistrate Lucev found that a CFMEU organiser had told employees a particular site was ‘a union site’ and, when informed that they were not union members, said ‘there’s a problem, we’ve got to sort it out’.
The magistrate found that this statement misled the employees about their rights to join or not join the union in breach of s790 of the Workplace Relations Act.
The CFMEU (construction and general division) and its WA branch were also vicariously culpable for the breach.
However, Federal Magistrate Lucev rejected the ABCC’s argument that the CFMEU official had also intended to coerce the workers to join the union contrary to the Act’s s789. The evidence failed to demonstrate the requisite intent.
Security card dispute — fines
The Federal Court fined the CFMEU, CEPU and five of their officials over $100,000 in relation to unlawful industrial activity on Bovis Lend Lease sites in Melbourne during a dispute in 2008 — the issue being the company’s introduction of a swipe-card system.
In a statement of facts agreed with the ABCC, the unions and officials admitted to14 breaches of s38 of the BCII Act over three days.
The parties also agreed on penalties and Justice Jessup in the Federal Court accepted this agreement.
Coercive behaviour found and fined
The Federal Court has fined the CFMEU and nine of its officials a total of over $160,000 relating to coercive behaviour and unlawful industrial action on Victorian roads projects.
The dispute followed Abigroup’s rejection of a request from CMFEU organisers that 13 employees on a particular project and made redundant be transferred to the another project — as the union claimed this was in align with Abigroup’s custom and practice.

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