The Federal Court has penalised the CFMMEU and two of its officials $554,600 after finding they targeted Newcastle company Wheeler Cranes because it did not have an enterprise agreement with the union.
The penalty is one of the largest handed out to the CFMMEU and follows the union’s campaign to coerce NSW crane companies to sign up to CFMMEU enterprise agreements.
This takes the amount the union has been ordered to pay to more than $2 million in three separate Federal Court judgments this year for unlawful conduct targeting NSW crane companies.
The campaign against Wheeler Cranes saw CFMMEU officials Brendan Holl and Justin Hobson contravene right of entry laws and engage in coercive conduct at three Newcastle building sites in October 2018 in a bid to have the crane company removed from the projects.
Up to 30 men wearing CFMMEU hoodies and waving banners protested at the sites.
On 18 October 2018, Mr Holl and others blocked access to the Kooragang Coal Terminal.
He told site representatives the protesters would not leave until a crane belonging to Wheeler Cranes was removed from the premises.
Police were called after the officials refused to leave.
On 19 October protestors wearing CFMMEU-branded clothing and chanting slogans assembled at the San Clemente High School site.
The protestors blocked driveways preventing vehicles from entering or exiting the site.
Mr Holl and Mr Hobson entered the site where they prevented the Wheelers’ crane from operating.
The pair refused to leave unless the crane was removed.
Due to their conduct, work on the site was stopped.
On 22 October 2018, groups of men wearing CFMMEU-branded clothing again assembled outside Kooragang Coal Terminal gates.
A number of the protesters prevented a Wheeler Cranes mobile crane and a truck from entering the site.
During a discussion with site management Mr Holl said: “It’s going to get ugly today if Wheeler Cranes come on site”.
Justice Abraham said of the officials’ actions:
“I accept the characterisation of the conduct by the ABCC. The conduct was deliberate, premeditated, coordinated, and for clearly prohibited purposes. …it was clearly intended to exert coercive pressure against third parties which was ultimately directed at Wheeler Cranes, through the overt and covert industrial muscle of the union, to get Wheeler Cranes to give in to the CFMMEU’s demands in respect of the EBA.
“…the conduct of Mr Holl, Mr Hobson and the CFMMEU involved the misuse of the powers of Mr Holl as a permit holder so as to intentionally hinder and obstruct the performance of work at the various sites, and Mr Hobson aided and abetted Mr Holl’s misuse of such power.
“Mr Holl, Mr Hobson and the CFMMEU have deliberately flouted the law in taking coercive action to secure a desired result by that unlawful means.”
Justice Abraham said of the CFMMEU:
“…The contravention record speaks for itself in evidencing the CFMMEU’s recidivism. The CFMMEU’s repeated failure to obey Commonwealth workplace relations legislation is self-evident.
In summing up the level of penalties Justice Abraham said:
“… The CFMMEU has not adduced any evidence of having taken any corrective action such as training, instruction or direction such as to ensure compliance with the law, or at least limit or minimise the prospect of future contraventions. There is no expression of remorse or regret. Considerations of deterrence loom large.”
ABCC Commissioner Stephen McBurney said the severity of the penalty and strong comments from Justice Abraham highlighted the court’s frustration with the CFMMEU’s systemic pattern of behaviour when it comes to getting its way on construction sites.
“This completes the trilogy of NSW crane cases investigated and taken to court by the ABCC. The Federal Court has ordered the CFMMEU to pay penalties and legal costs in excess of $2 million with the Botany Cranes penalties currently subject to appeal,” Mr McBurney said.
“The only conclusion to draw from the established facts in these matters is that the CFMMEU engaged in a campaign to target New South Wales crane companies to force them to sign the union’s enterprise agreement.
“The employees of Botany Cranes, Wheeler Cranes and WGC Cranes had their livelihoods threatened by the unlawful conduct of the CFMMEU and its officials. This strikes at the very heart of the protections contained in the Fair Work Act and the BCIIP Act.
“Despite the findings of the Court, the leadership of the union have expressed no contrition and no remorse. There has also been no clear statement of intent or direction from the leadership of the CFMMEU to its officials to desist from such unlawful conduct in the future.
“The ABCC will continue to investigate conduct of this nature and hold law breakers to account for their actions.”
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