Heiko Constructions Pty Ltd, a Queensland construction company, has been ordered to pay a former worker $60,000 in penalties and $7,000 in compensation after attempting to coerce its then worker to re-join the CFMMEU.
The penalties followed the ABC Commissioner's intervention to assist the Court to determine the appropriate penalties and compensation.
The Federal Circuit and Family Court decision follows the worker taking court action against his employer in what the Judge described as: "a David versus Goliath who was tag-teaming with Leviathan" battle.
On 27 April 2018, the Jewel construction site worker was called into his foreman's office (Mr Barrios) and told words to the effect that, if he re-joined the CFMMEU, he could:
"… enjoy, or continue to enjoy, the pay and benefits of an "EBA job" whereas, if he did not, he would have to find another job "for a wage that sucks".
Referring to the discussion Judge Vasta said:
"I am certainly of the opinion that the Applicant would have felt "crushed" after this conversation given how dismissively [the foreman] spoke of the Applicant's rights to freedom of association."
In awarding a near maximum penalty Judge Vasta remarked that:
"The pressure that was put upon the Applicant by Mr Barrios was frightening. When the Applicant proclaimed that he did have the right to freedom of association, Mr Barrios casually dismissed those concerns."
"There is some substance to the submission of the Applicant that it is this very kind of conduct by compliant employers that is the source of the power of the CFMEU. The penalty must be a sufficient deterrent to any employer that this type of conduct will simply not be tolerated by the community as a whole.
"The cavalier attitude displayed by Mr Barrios towards a basic human right that is also enshrined in legislation is chilling. According to Mr Barrios, this human right is nothing more than "politics" which can just be overridden.
"The [worker] is an honest but simple man. He faced the wrath of the giant CFMEU who were putting pressure on him to pay his union dues because they did not accept his resignation. But his employer should have been accepting of the freedom of association that the Applicant possessed; not just because it was enshrined in legislation but because it was also his inalienable right as a human being."
ABCC Commissioner Stephen McBurney said:
"In exercising my right of intervention, I made submissions to the Court that:
· there was a clear imbalance in power between the two parties. The threat was couched in no uncertain terms that the worker's job and income would suffer if he did not comply. This is a significant outcome of non-compliance and one that the worker would readily assume his employer had the power to enforce.
· the content of the threat itself was sinister and had a number of disturbing aspects to it, including wrongly referring to the worker receiving a wage under the EBA and, that unless he was a union member, he could not work on an EBA site.
· the unlawful conduct was objectively serious.
· the penalty should be set to ensure that employers do not wittingly or unwittingly lend assistance to others intent on advancing their own agendas, such as the CFMMEU. For employers that are caught in a difficult position of being pressured by the union on one side with the interest of the employees on the other, the Court must make clear that the employers must always choose the path of lawfulness.
· The penalty and compensation should be paid to the victim of the conduct
"The Court found it appropriate to penalise Heiko Construction close to the maximum penalty available and to compensate the victim.
"As the Court has made clear, coercion of this nature strikes at the heart of the basic principles of industrial relations in this country."
Judicial history
13 August 2018 – The Applicant files Federal Circuit Court claim
12 December 2019 – Federal Circuit Court delivers liability decision
25 November 2020 – Full Court of the Federal Court dismisses appeal filed by Heiko
3 December 2020 – ABC Commissioner intervenes in the proceedings
15 June 2021 – special leave application to the High Court is discontinued by Heiko Construction
5 November 2021 – Federal Circuit and Family Court (formerly Federal Circuit Court) delivers penalty judgment and makes final orders
