FEDERAL COURT OF AUSTRALIA

Wotherspoon v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 158

THE COURT ORDERS THAT:

1.    Pursuant to O 6 rr 8 and 9 of the Federal Court Rules,

(a)    Australian Building and Construction Commissioner be added as applicant; and

(b)    John Wotherspoon cease to be applicant.

2.    Each penalty set out in the 3rd column of the table below be imposed on the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for its contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) constituted by the conduct engaged in by it correspondingly identified in the 2nd column thereof on the date correspondingly set out in the 1st column thereof.

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3.    Each penalty set out in the 3rd column of the table below be imposed on the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) for its contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) constituted by the conduct engaged by it correspondingly identified in the 2nd column thereof on the date correspondingly set out in the 1st column thereof.

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4.    Each penalty set out in the 3rd column of the table below be imposed on Elias Spernovasilis for his contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) constituted by the conduct engaged in by him correspondingly identified in the 2nd column thereof on the date correspondingly set out in the 1st column thereof.

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5.    Each penalty set out in the 3rd column of the table below be imposed on Troy Gray for his contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) constituted by the conduct engaged in by him correspondingly identified in the 2nd column thereof on the date correspondingly set out in the 1st column thereof.

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6.    Each penalty set out in the 3rd column of the table below be imposed on Derek Christopher for his contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) constituted by the conduct engaged in by him correspondingly identified in the 2nd column thereof on the date correspondingly set out in the 1st column thereof.

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7.    Each penalty set out in the 3rd column of the table below be imposed on Adrian McLoughlin for his contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) constituted by the conduct engaged in by him correspondingly identified in the 2nd column thereof on the date correspondingly set out in the 1st column thereof.

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8.    A penalty of $2,500 be imposed on Matthew Hudson for his contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) constituted by him directing employees to leave the site of the Hospital project on 28 August 2008, as a result of which those employees failed or refused to perform building work.

9.    Each of the penalties referred to above be paid to the Consolidated Revenue Fund on or before 31 March 2011.

10.    There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    These reasons should be read in conjunction with my reasons published on 23 February 2010 in this proceeding: Wotherspoon v Construction, Forestry, Mining and Energy Union [2010] FCA 111.

2    The original applicant, John Wotherspoon, is no longer an inspector under the BCII Act. The Commissioner has standing under s 49(6)(a), and proposes that I should make the necessary orders by way of substitution. Mr Wotherspoon’s position seems to be covered by O 6 r 9(b) of the Federal Court Rules, and the addition of the Commissioner should be done under O 6 r 8(1)(b) thereof. I shall make the appropriate orders to effect this substitution.

3    The parties have now filed, and placed into evidence, an Amended Statement of Agreed Facts by which they seek to overcome the difficulties to which I referred in my reasons of 23 February 2010. Further, the applicant (which, for reasons explained in above, will now be the Australian Building and Construction Commissioner) has abandoned his allegations of unlawful conduct on 5 August 2008, and redistributed, in effect, the proposed penalties as between the remaining contraventions.

4    With respect to the events of 23 May 2008, it is now agreed that the meeting at which the vote for a withdrawal of labour was passed was conducted by officials of the CFMEU and the CEPU, including Messrs Spernovasilis and Gray. It was those officials, including those two named, who sought the vote for a withdrawal of labour. Each of Messrs Spernovasilis and Gray spoke in favour of the motion, and urged those in attendance to support it. I am satisfied that these facts supply the deficiencies to which I referred to in paras 11 and 12 of my reasons of 23 February 2010.

5    With respect to the events of 28 August 2008 at the Docklands project, it is now agreed that Messrs Spernovasilis, McLoughlin, Christopher and Gray spoke in favour of the motion of the unknown organiser referred to in para 22 of my reasons of 23 February 2010. It is agreed that the affirmative outcome of the motion was procured and supported by those officials of the CFMEU and the CEPU.

6    The parties are now agreed that, on each of the three days now relevant, the conduct of each respondent of which complaint is made constituted a single course of conduct for the purposes of assessing the appropriate penalty range. That agreement deals with the difficulty to which I referred in paras 27-32 of my reasons of 23 February 2008.

7    The parties are still agreed that penalties amounting in total to $110,000 should be imposed upon the respondents, but, in place of the table set in para 6 of my reasons of 23 February 2010, the parties now propose the following breakup of this total as between the contraventions that have been admitted by the various respondents:

8    I am satisfied that these penalties lie within the permissible range for the contraventions to which they respectively relate. I shall act in accordance with the parties’ agreement, and make orders imposing penalties accordingly.

Associate:

Dated:    3 March 2011