CFMMEU and representatives penalised $495,000 over work stoppages

The Federal Court has today penalised the CFMMEU and three of its representatives $495,000 after they organised unlawful industrial action at the Melbourne University Veterinary School project site.

The ABCC commenced the legal action after the representatives' actions resulted in work being stopped at the project site in July 2018.

CFMMEU official Kane Pearson and shop steward Dario Maloni admitted to two contraventions of the Building and Construction Industry (Improving Productivity) Act 2016, while official Paul Tzimas admitted to one contravention of the Act.

The CFMMEU was also found to have contravened the Act five times as a result of the representatives' actions.

The unlawful industrial action took place on 13 and 26 July 2018 during construction of the university's four-storey learning and teaching building, an extension of the veterinary hospital in Werribee in Melbourne's west.

On 13 July 2018, Mr Maloni and Mr Pearson led about 35 workers into the site sheds during working hours and held the door shut so that site management could not enter.

After about 30 minutes, when the doors were unblocked, the senior project manager told the workers that the meeting was unlawful and directed them to return to work.

After the majority of the workers returned to work, Mr Maloni physically prevented the remaining workers from leaving the sheds by blocking the doorway.

On 26 July 2018, Mr Pearson, Mr Tzimas and Mr Maloni entered the lunch shed whilst workers were on a break and held a meeting, after which the workers did not return to work when their break ended at 9:50am.

WorkSafe attended the site after the representatives raised alleged safety issues. WorkSafe Inspectors concluded that there was no reasonable cause for employees to be concerned for their safety and no reason for a cessation of work. Despite this, the workers did not return to work until shortly after 12:30pm.

The judgment of the Court had this to say about the CFMMEU:

The courts have recounted the CFMMEU's notorious recidivism on many occasions. It is a serial offender, which has "historically acted in disregard of the law and appeared to treat the imposition of pecuniary penalties … as 'little more than the cost of its preferred business model'".

As Katzmann J said in the WGC Cranes Case …:

[T]here is a pressing need for specific deterrence in the case of the [CFMMEU]. Having regard to the [CFMMEU's] apparent disdain for industrial laws that get in its way, in order to achieve the objective of deterrence, both specific and general, substantial penalties are called for.

The evidence also established that the CFMMEU is both cash and asset rich. As Katzmann J also said in the WGC Cranes Case:

"In these circumstances the penalties will need to be sufficiently high to operate as an effective deterrent (though not so high as to be disproportionate to the gravity of the contraventions). That is particularly so in the case of the [CFMMEU] having regard to its culture of non-compliance with industrial laws which it has steadfastly refrained from addressing.

ABCC Commissioner Stephen McBurney said the representatives' actions were an all too familiar example of the CFMMEU's disregard for Australia's workplace laws. The judgment summarised the Commissioner's submission to the Court as follows:

The Commissioner also submitted that there were no issues of safety (or at all) raised by either Mr Maloni or Mr Pearson to justify the stoppage of work, and no respect shown for (the head contractor's) authority on the U-Vet Site. It was also submitted that the conduct demonstrated a calculated, and targeted, form of industrial action, and that the CFMMEU had determined that it did not want (a subcontractor) working on the U-Vet Site and sought to flex its industrial muscle to force (the head contractor) to bend to its demands to advance its industrial agenda..."

In considering the judgment, Mr McBurney added:

"The penalties awarded by the Court against the CFMMEU and its officials reflect the seriousness of their actions and the CFMMEU's long record of recidivism."