The Federal Court has handed down $1,022,500 in penalties against the CFMMEU, three of its highest-ranking NSW officials and a delegate following threats and unlawful pickets against Sydney crane company Botany Cranes in January 2019.
The CFMMEU was ordered to pay $850,000 in penalties, NSW CFMMEU President Rita Mallia, Assistant Secretaries Robert Kera and Michael Greenfield and union delegate Howard Byrnes were penalised a total of $172,500. Ms Mallia, Mr Kera and Mr Greenfield were ordered to personally pay penalties.
The ABCC brought proceedings alleging unlawful picketing and threats aimed at coercing Botany Cranes to sign up to a CFMMEU enterprise agreement and reinstate the employment of Mr Byrnes.
On 25 January during the first picket involving about 50 people, NSW Police were required to escort Botany Cranes’ staff while they entered and left the premises.
When the Botany Cranes operations manager arrived for work, she heard “Here’s one of them”, “They’re a bunch of dogs”, “CFMEU” and “They shafted Howard for standing up for his men”, making her feel fearful, ill and causing her to cry. The operations manager then called the office receptionist and advised her not to attend work for fear of being intimidated and distressed by the group.
On 30 January Mr Greenfield told the Botany Cranes managing director if he did not reinstate the CFMMEU delegate:
“This is going to be pretty bad today, worse than you have seen. Or I can stop it immediately. It’s going to be full on. Really bad for you. Once this happens today there’s no going back for you. Or we can settle it if you put Howard back on. We’ll come to terms with the things you want in the EBA. We’ll start negotiating fairly, give you what you want and we can move forward. I want the lawyers kept out of it. Lawyers are dogs.”
On 31 January Mr Greenfield told the Botany Cranes managing director to sign the CFMMEU’s enterprise agreement and said:
“If I were you, I’d f***in’ sign it. You haven’t seen anywhere near bad yet. See what happened to WGC and Boom Logistics and they had money, what do you think will happen to you?”
The Court awarded $30,000 of the union’s penalty to be paid to Botany Cranes, on account of lost revenue following the picket on 25 January 2019.
In handing down the judgment, Justice Rares said of the unlawful pickets:
· “The point of [the] conduct was to make, as it did, a stark demonstration of the reality of the picketers’ chant “Union – Power”. Later, Michael Greenfield again evinced the power that the group was exercising by his fiat “Let them go” before they acted, as recorded in the police video. Indeed, as vehicles left the yard about two hours after [the operations manager] arrival, some picketers yelled out “scum”, some made monkey noises and Michael Greenfield led more chanting.
· “As in this proceeding, a large group of about 50 individuals, mostly comprising apparently strong, physically well-built males blocking or controlling what would otherwise be free entry to and egress from premises while aggressively chanting self-promoting slogans and pumping fists in the air, is calculated to instill fear into persons who are within or wish to enter those premises.
· “There could have been no doubt about the intimidatory intent directed towards Botany Cranes of those combining in the picket outside its yard and premises and their conduct, including as manifested in their aggressive chants and gestures.
· “The police had to attend in considerable numbers. They are a public resource that had to be diverted from their other activities because the Union indicated that it would engage in a protest that, it was safe to infer, would involve unlawful picketing. The Commonwealth did not, but the State did, incur the expense in providing police to protect persons and property from the reasonably apprehended possibility of trouble occurring were they not deployed to keep the peace.
· “This deliberate, persistent and flagrantly unlawful conduct by a senior official and the Union, which is a serial contravener, cannot be tolerated in our democratic society. It is a threat to the rule of law…”
In relation to the conduct of NSW CFMMEU President Rita Mallia, the Court said:
“… [Ms Mallia] succumbed to what is obviously the embedded culture in the Union. That culture treats the laws enacted by the Parliament as irrelevant to what the Union and its officials feel free to do in breach of them. The Union regards any penalty as a mere price of its doing business. It is essential that persons in the senior leadership of the Union, such as Ms Mallia, and its members generally, be deterred from engaging in such behaviour.
The price of contravention must be set so high that persons who might feel emboldened by the toxic culture, revealed in the Union’s history of defiance of the law, know that the Court will exercise its powers to deter them and any others who might contemplate doing so in the future.”
In reference to the contravening history of Assistant Secretary Mr Kera, the Court said:
“He is remorseless and a recidivist. His conduct on 25 January 2019 was redolent of the intention to bring to bear very significant coercion of Botany Cranes by his menacing threats to “wipe the floor” with it.
“It is essential that he, as a senior office holder of the status of assistant secretary of the branch, and others, be deterred from engaging in such behaviour again and that the message be given loudly and clearly that the Court will not tolerate such flagrant, conscious defiance of the law.”
In relation to the conduct of Assistant Secretary Mr Greenfield, the Court stated:
“The threat was menacing, calculated and shameful. It was nothing less than industrial thuggery…
“Michael Greenfield’s statement on 31 January 2019 to [the managing director] “If I were you, I’d f**kin’ sign it”, his threat “… what do you think will happen to you?”, followed up the next day by “If you sign the EBA we will leave your sites alone” were not idle chit chat. They were overbearing threats, intended to be so, and they worked.
“He espoused to the group, in his speech on 25 January 2019, that what was happening reflected the Union’s culture, namely, regardless of the law, “We continue to do it the way we do it” (emphasis added). And, between 30 January and 1 February 2019, Michael Greenfield was a consummate exponent of “the way we do it”, namely by the Union using industrial thuggery, or in the language of the Act, undue pressure, at every turn.
“Coercion, undue pressure and other forms of industrial bullying have no place in our society. Michael Greenfield’s behaviour over the week beginning 25 January 2019 was shocking. He felt and ruthlessly exercised power – “Union power” – no doubt emboldened by the Union’s long history of, and deep pockets to fund its, defiance of the laws made by the Parliament to prohibit such bullying behaviour. It is necessary that he, and others in similar positions, be deterred from engaging in such conduct in the future.”
In reference to the CFMMEU, the Court said:
“…Its conduct, through its three senior officials in this proceeding, displayed utter contempt for the rule of law… Its conduct here demonstrates that the culture of the Union, and its senior officials, is simply “might is right” or “Union – power”. That conduct has no place in our society…
“The Union is not prepared to abide by the law.
“In my opinion, the Union will only be deterred from further contraventions of the very serious nature of those that occurred on 25 January 2019 of the Act by a severe, if not drastic, penalty.
ABCC Commissioner Stephen McBurney said the CFMMEU’s action against Botany Cranes was part of a wider campaign to coerce NSW crane companies to sign up to CFMMEU enterprise agreements.
“This judgment represents the largest penalties imposed in any case brought by the ABCC under the BCIIP Act. The personal payment orders (PPO) against Mr Greenfield and Mr Kera are the largest PPOs to date.
“Penalties imposed on the CFMMEU and its officials are now $3,883,700 million in NSW and almost $12,399,605 million nationally since 2 December 2016.
“The Court has rightly described the conduct in this case as shocking, inexcusable and unacceptable. There is a high price to pay for breaking the law. In this case, it amounts to $1,022,500 for the union and its representatives.
“The three most senior CFMMEU officials are required to personally pay $132,500 in penalties. This will ensure the sting or burden of the penalty is felt by the individuals concerned.
“The ABCC stands ready to assist and defend any victim. The Court has stated in clear terms that coercion, undue pressure and other forms of industrial bullying have no place in our society.
“We will not hesitate to take decisive action to enforce workplace laws on building and construction sites.”
Personal payment orders
To be determined
*The Court ordered the CFMMEU pay $30,000 as a pecuniary penalty to Botany Cranes
**The Court also ordered the CFMMEU to pay the ABCC’s legal costs totaling $133,000.