CFMEU appeals ‘flawed’ $2.5M penalty over strike
Employment May 31, 2018 8:46 pm By Miklos Bolza | Sydney

A ruling imposing a record $2.5 million fine against the Construction, Forestry, Mining and Energy Union had “fundamental flaws”, a lawyer for the union told the Full Federal Court Thursday.

CFMEU barrister Tim Game, SC, argued on appeal that Justice Geoffrey Flick was wrong to slap the union’s national and state branches, plus nine officials with separate penalties each over the same unlawful industrial action in 2014.

The union was taken to court by the Australian Building and Construction Commissioner in April 2016 for alleged contraventions of the Fair Work Act after organising a strike of more than 1,000 workers at a Barangaroo construction site in Sydney over two days in July 2014.

In imposing the record fine in September, Judge Flick said it was “not possible to envisage worse union behaviour”.

“The CFMEU’s conduct ­exposes a cavalier disregard for the prior penalties imposed by this court and exposes the fact that such prior impositions of penalties have failed to act as a deterrent against further unlawful industrial action,” the judge said.

But when calculating the final penalties and issuing multiple fines, Judge Flick failed to consider the single underlying intention behind the two-day action, Game told the appeals court Thursday.

“One has to be very careful indeed about double punishment in situations like this,” Game said.

For each contravention, Judge Flick ordered the CFMEU’s federal branch to pay the maximum fine of $51,000. For the NSW branch, the judge cut that penalty by 25 percent, issuing fines of $38,250 for each breach.

Nine union officials, including NSW state secretary Brian Parker, were also fined for breaching the Fair Work Act by coercing workers to join the strike.

The decision led to a total fine of $1.33 million for the federal CFMEU, $956,000 for the NSW branch, and $189,000 for the officials.

Breaches by “fringe players”, among them CFMEU organiser Richard Auimatagi, who showed “no more than a presence” at the event, should not result in a penalties against the union that amounted to four times the maximum, Game told the court.

“You can’t impose a penalty that is more severe than the reasonable grounds,” he said.

The high penalties for the NSW branch were also unfair, Game said, because the state union had a “very little role” in the events.

The Barangaroo industrial action was ignited by the March 2014 suspension of Peter Genovese, a CFMEU delegate who was employed as a construction worker by Lend Lease Building. According to the ABCC, Genovese threw a punch at site manager Brad Geaney over a dispute about safety standards.

The Fair Work Commission issued an order on July 24 for the CFMEU to cease all industrial action at the Barangaroo site. The ABCC claims this was ignored, and the strike continued the following day.

Barrister Matthew White, SC, appeared at Thursday’s full court hearing for the ABCC, and is expected to be heard on the penalties on Friday.

Game, of Forbes Chambers,  was instructed by Taylor & Scott. White, of Sixth Floor Selborne Wentworth, was instructed by Minter Ellison.

The Full Court comprised of Justices Anthony Besanko, John Reeves and Robert Bromwich.

The case is Brian Parker & Ors v Australian Building and Construction Commissioner.

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Miklos Bolza

Miklos Bolza has been a journalist for three years. He has written for a variety of publications, including NZ Lawyer, HRD Australia, and Australian Broker. He is currently the Sydney court reporter for Lawyerly.