CFMEU penalty halved as no evidence of ‘turning blind eye’ to conduct of  officers

Cases

CFMEU penalty halved as no evidence of ‘turning blind eye’ to conduct of officers

The Full Court of the Federal Court has almost halved a penalty awarded against the CFMEU, after it found there was no evidence that the CFMEU 'turned a blind eye' or did not concern itself as to the manner and methods employed by its officers.

WantToReadMore

Get unlimited access to all of our content.

 

The Full Court of the Federal Court has almost halved a penalty awarded against the CFMEU, after it found there was no evidence that the CFMEU 'turned a blind eye' or did not concern itself as to the manner and methods employed by its officers.
 
The CFMEU and one of its site organisers appealed against a judgment of the Federal Court’s Justice Cooper, which found they had contravened s298P(3) of the Workplace Relations Act 1996.
 
Background
 
In the primary case, the employment advocate alleged that the CFMEU and the state union, the Builders Labourers Federation (BLF), and their respective site organisers made threats of industrial action to the manager of two contracting companies working at Queensland’s Oakey Power Station construction site. 
 
The court heard that the organisers attempted to coerce Lillicorp and/or Candid Hire to remove a Candid Hire foreman because he was not a member of either union and refused to join either union. The BLF organiser, Jamie McHugh, on one occasion threatened to 'cause other hassles at other sites' and on a second occasion threatened to page Brisbane delegates and tell them to stop work on all the contractor’s sites. 
 
Justice Cooper found that McHugh knew that the employment conditions on the site were governed by a Federal Certified Agreement. As he was also an officer of the federal organisation of the CFMEU, by being an officer of the CFMEU Queensland Construction Workers' Divisional Branch, it was in this capacity that he entered the site and it was in this capacity which he acted when on site.
 
He reasoned that the threat of industrial action was intended to coerce Candid Hire as employer to take action against the foreman. His Honour found that the evidence satisfied s298K(1)(a), (b) and (c) in that it was intended to induce the foreman’s dismissal or injure him in his employment or alter his position to his prejudice. This was for a prohibited reason pursuant to s298L(1)(b), namely the foreman’s refusal or failure to join the CFMEU and/or the BLF.
 
Justice Cooper said McHugh’s conduct '... was completely unacceptable. It was abusive, threatening and intended to intimidate or coerce others to act to achieve the outcome [he] wished to achieve … The penalty to be imposed against [McHugh] requires that it act as a deterrent to him and others who might be like-minded to engage in the "bully-boy" practice of industrial relations.'
 
He said that Michael Ravbar, the CFMEU organiser, 'may not have adopted the belligerent abusive approach of [McHugh]. However, he clearly knew that he could not lawfully engage in the conduct which he did.'
 
Justice Cooper awarded a penalty of $7,500 against the CFMEU and a penalty of $750 against Ravbar.
 
Findings
 
At appeal, the Full Court of the Federal Court supported Justice Cooper’s findings.
 
It said there was evidence to support his finding that the demand that the foreman be removed from the site was because of his failure to join the union, not for his failure to pay outstanding membership dues as claimed by the unions.
 
On the question of the severity of penalties imposed, the Full Court found there was no basis to change the $750 fine imposed on Ravbar and dismissed his appeal. 
 
As to the CFMEU's penalty, the Full Court questioned whether the CFMEU should have been punished on the basis of 'a deliberate disregard and defiance of the provisions of the Act' by it because it led no evidence to establish the contrary. It said Justice Cooper proceeded on the basis that there was nothing to suggest that the organisations regarded anything that the organisers did as 'wrong'. 
 
However, 'it has to be said that there is nothing to suggest that the organisations regarded anything that the [organisers] did in the circumstances complained of as being ‘right’.'
 
Consequently, the Full Court said, the process of imposing a penalty on the CFMEU proceeded on a wrong basis. It found there was no evidence that the CFMEU 'turned a blind eye' or did not concern itself as to the manner and methods employed by its officers, servants or agents. 
 
The CFMEU had to be penalised on the basis that its officer engaged in what Justice Cooper described as 'the `bully-boy' practice of industrial relations', however conduct of that type had not happened prior to the offence in question, nor subsequently. 
 
The Full Court reduced the CFMEU's penalty from $7500 to $3000.
 
See: Construction Forestry Mining & Energy Union v Hamberger [2003] FCAFC 38, (10 March 2003) – Full Ct of Federal Court (Spender, Drummond & Marshall JJ).
Post details