Federal Court punishes CFMMEU for targeting non-EBA crane companies

Federal Court punishes CFMMEU for targeting non-EBA crane companies

The ABCC has secured significant penalties against the CFMMEU and two officials in the Federal Court for taking action against crane companies in NSW who did not have enterprise agreements with the construction union giant. The penalties handed down are some of the largest achieved by the building industry watchdog against the CFMMEU.

In proceedings before Federal Court Justice Wendy Abraham, evidence was led about a concerted campaign by the union targeting Wheeler Cranes & Services Pty Ltd (Wheeler Cranes), a crane company that services the Newcastle and Hunter Valley regions. The company is a supplier of mobile cranes and mobile hire services to building contractors of up to 250 tonnes in capacity.

From May 2018 to September 2018, Wheeler Cranes, its representatives and the union had engaged in a series of meetings involving enterprise bargaining. Ultimately, however, the parties could not reach an agreement on the proposed EBA. Consequently, the CFMMEU commenced an industrial campaign against Wheeler Cranes comprising a number of incidents involving union officials at sites where Wheeler Cranes supplied mobile cranes.

On 18 October 2018, Brendan Holl, a CFMMEU official, stood with a group of protesters blocking access to the Koorangang Coal Terminal. When approached by site representatives, the Organiser informed them they would not leave until Wheeler Cranes was removed from the site. Wheeler Cranes agreed to depart the site but suffered financial consequences as a result.

On 19 October 2018, the Organiser and another official approached the site foreman at Newcastle TAFE, where Wheeler Cranes were involved in removing a façade from an existing building. A group of about 30 protestors waving CFMMEU banners had assembled in the street adjacent to the site. The Organiser advised the foreman they would not leave the site until the Wheeler crane was removed.

In evidence, the officials admitted that their actions were intended to coerce the principal contractor not to engage Wheeler Cranes, therefore breaching s 52(b) of the Building and Construction Industry (Improving Productivity) Act 2016.

On the same day, both officials approached site representatives at the San Clemente Site in Mayfield and identified several safety issues with a Wheeler’s crane on site. Despite the issues being rectified, Mr Holl said words to the effect of, “No, you need to pack up the crane and remove it from site. We are not leaving until the crane is gone”.

On 22 October 2018, a group of CFMMEU protestors were again blocking the entry of Wheeler vehicles to the Koorangang Coal Terminal. The two Organisers again inspected a Wheeler’s crane on the site and claimed to have identified several safety issues with the plant. It was removed by the company later in the day.

The Organiser admitted that his actions were intended to coerce the site owner not to use Wheeler Cranes in contravention of s 355(b) of the Fair Work Act 2009.

In her determination, Justice Abraham noted,

“In relation to the contraventions of s500 of the FW Act, the conduct of Mr Holl, Mr Hobson and the CFMMEU involved the misuse of the powers of Mr Holl as a permit holder so as to intentionally hinder and obstruct the performance of work at the various sites, and Mr Hobson aided and abetted Mr Holl’s misuse of such power. (They) have deliberately flouted the law in taking coercive action to secure a desired result by that unlawful means”.

In summation, Justice Abraham gave a scathing assessment of the union. As she noted,

…it may be accepted that the CFMMEU is large, asset rich, well-resourced and that it has a prior history of contraventions of industrial relations legislation…The CFMMEU has not adduced any evidence of having taken any corrective action such as training, instruction or direction such as to ensure compliance with the law, or at least limit or minimise the prospect of future contraventions. There is no expression of remorse or regret”.

Justice Abraham imposed fines on the union and its officials exceeding $550,000. These included fines of $460,000 against the union, $61,600 against Mr Holl, and $33,000 against Mr Hobson.

Australian Building and Construction Commissioner v Holl (The Wheeler Cranes Case) [2021] FCA 1480 (30 November 2021)

For questions about enterprise bargaining, union right of entry, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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