Premeditated unlawful picket in SA leads to $384,000 in penalties

Australian Building and Construction Commission

The Federal Court has penalised the CFMMEU and its SA state secretary Andrew Sutherland $227,000 for their involvement in an unlawful picket in October 2019 during construction of the $27 million East Terrace apartments.

South Australian company Core-Form Construction and its director Andrew Sneath were also penalised $157,000 for their part in the picket.

The Court found a group of up to 30 people, some wearing CFMMEU hoodies and waving union flags, congregated outside the front gate of the site to protest matters relating to a commercial dispute between the head contractor and Core-Form.

The protesters were found to have shouted and directed chants towards the head contractor, including, “Grub” and “grubby-grub-grub”.

The protestors told a female employee of the head contractor to “get off site”. The protestors also directed chants to the head contractor’s female lawyer including “sell the Porsche” and “pay your bills’.

The Court found the protestors prevented a vehicle driven by a painter from entering the construction site by obstructing access and found the painter was prevented from using his vehicle to bring painting supplies onto the site to perform work.

In determining the CFMMEU’s penalty Justice O’Sullivan took into account the union’s history of contraventions:

“I accept the Commissioner’s submission that the contravening conduct by the Union was

serious, deliberate and unjustified. Further, I accept that the contravening conduct was

antithetical to the objects of the BCIIP Act.

“This offending is both another example and a continuation of the Union’s appalling behaviour…

“I consider the Union’s record of prior contraventions is a matter going to both the objective

seriousness of its contravening conduct and is a factor indicating an ongoing need for specific deterrence.”

Justice O’Sullivan said of the union’s submission for a lower penalty:

“The first point is an attempt by the Union and Mr Sutherland to isolate the contravening conduct from the broader perpetuation of a deliberate policy of disobedience by the Union and its officers. That attempt must be rejected. As Katzmann J observed in the WGC Cranes Case, to which I have referred above, the Union is notorious for its contravention of industrial laws.”

Assessing Mr Sutherland’s penalty Justice O’Sullivan noted his previous unlawful actions:

“This is the fifth time Mr Sutherland has engaged in behaviour which contravenes industrial legislation. I consider Mr Sutherland’s record of prior contraventions is a matter going to both the objective seriousness of his contravening conduct and is a factor indicating an ongoing need for specific deterrence.”

In penalising Core-Form, Justice O’Sullivan said:

“The SOP [Security of Payment] Act gave Core-Form the opportunity to obtain an adjudicator’s decision on its payment claims. Mr Sneath is a Director of Core-Form. The failure by Core-Form to pursue its rights under the SOP Act, but instead engage in the contravening conduct, is a matter I take into account as going to the objective seriousness of the contravening conduct of both Core-Form and Mr Sneath.

“In all the circumstances, I find the contravening conduct by Mr Sneath and by Core-Form was objectively serious.”

Australian Building and Construction Commissioner Stephen McBurney said:

“It was open to Core-Form and the Union to seek advice and assistance from the ABCC to resolve the underlying dispute. Instead, they resorted to an unlawful picket, which the judge described as pre-meditated.”

Any building industry participant who needs advice or assistance about security of payment issues on building sites should contact the ABCC on 1800 003 338.

Since July 2019, $13.2 million has been paid to sub-contractors following ABCC intervention to assist in recovering overdue or unpaid payments.

Penalties awarded against

Penalties awarded

CFMMEU

$189,000

Andrew Sutherland

$38,000

Core-Form Pty Ltd

$132,000

Andrew Sneath

$25,000

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