FEDERAL COURT OF AUSTRALIA

Gregor v Construction Forestry Mining and Energy Union [2011] FCA 808

THE COURT ORDERS THAT:

1.                  A penalty of $18,000 be imposed on the Construction Forestry, Mining and Energy Union for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

2.                  A penalty of $2,000 be imposed on Matt Hudson for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

3.                  A penalty of $2,000 be imposed on Noel Washington for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

4.                  A penalty of $2,000 be imposed on Derek Christopher for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

5.                  A penalty of $2,000 be imposed on John Setka for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

6.                  A penalty of $2,000 be imposed on Elias Spernovasilis for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

7.                  A penalty of $2,000 be imposed on Shaun Reardon for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria on 12 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12 and 15 December 2008 – 52 Flemington Road, Parkville

8. A penalty of $30,000 be imposed on the Construction Forestry, Mining and Energy Union for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 15 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

9. A penalty of $5,000 be imposed on Matt Hudson for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 15 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

10. A penalty of $5,000 be imposed on Noel Washington for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 15 December 2008 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12 and 13 February 2009 – 52 Flemington Road, Parkville

11. A penalty of $40,000 be imposed on the Construction Forestry, Mining and Energy Union for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12. A penalty of $5,000 be imposed on Matt Hudson for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

13. A penalty of $5,000 be imposed on Noel Washington for procuring the stoppage of work on the construction site at 52 Flemington Road, Parkville, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12 and 13 February 2009 – 637 Chapel Road, South Yarra

14. A penalty of $30,000 be imposed on the Construction Forestry, Mining and Energy Union for procuring the stoppage of work on the construction site at 637 Chapel Road, South Yarra, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12 and 13 February 2009 – Victoria Harbour

15. A penalty of $30,000 be imposed on the Construction Forestry, Mining and Energy Union for procuring the stoppage of work on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street, Docklands, Victoria and 834 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

16. A penalty of $5,000 be imposed on Derek Christopher for procuring the stoppage of work on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street, Docklands, Victoria and 834 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

17. A penalty of $5,000 be imposed on Elias Spernovasilis for procuring the stoppage of work on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street, Docklands, Victoria and 834 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

18. A penalty of $5,000 be imposed on Shaun Reardon for procuring the stoppage of work on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street, Docklands, Victoria and 834 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

12 and 13 February 2009 – 717 Bourke Street, Docklands

19. A penalty of $30,000 be imposed on the Construction Forestry, Mining and Energy Union for procuring the stoppage of work on the construction site at 717 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

20. A penalty of $5,000 be imposed on Elias Spernovasilis for procuring the stoppage of work on the construction site at 717 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

21. A penalty of $5,000 be imposed on Shaun Reardon for procuring the stoppage of work on the construction site at 717 Bourke Street, Docklands, Victoria on 12 and 13 February 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to employ a particular person as a building employee and to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

18 February to 2 March – 52 Flemington Road, Parkville

22. A penalty of $40,000 be imposed on the Construction Forestry, Mining and Energy Union for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

23. A penalty of $5,000 be imposed on Matt Hudson for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

24. A penalty of $5,000 be imposed on Noel Washington for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

25. A penalty of $5,000 be imposed on Derek Christopher for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

26. A penalty of $5,000 be imposed on John Setka for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

27. A penalty of $5,000 be imposed on Elias Spernovasilis for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

28. A penalty of $5,000 be imposed on Shaun Reardon for preventing the delivery of concrete, steel and other building materials to, and the removal of accumulated waste from, the construction site at 52 Flemington Road, Parkville, Victoria between 18 February and 2 March 2009 with the intent to coerce the builder, Caelli Constructions (Vic) Pty Ltd to allocate particular responsibilities to a building employee in contravention of s.43 of the Building and Construction Industry Improvement Act 2005 (Cth).

29. The penalties referred to in orders 1 to 28 above be paid to the Consolidated Revenue Fund within 28 days of the date on which this order is made.

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.

THE COURT ORDERS THAT:

15 and 16 October 2008 – 52 Flemington Road, Parkville

1.                  A penalty of $35,000 be imposed on the Construction Forestry, Mining and Energy Union for engaging in unlawful industrial action on the construction site at 52 Flemington Road, Parkville, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

2.                  A penalty of $5,000 be imposed on Shaun Reardon for engaging in unlawful industrial action on the construction site at 52 Flemington Road, Parkville, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

3.                  A penalty of $5,000 be imposed on Matt Hudson for engaging in unlawful industrial action on the construction site at 52 Flemington Road, Parkville, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

15 and 16 October 2008 – Victoria Harbour

4.                  A penalty of $20,000 be imposed on the Construction Forestry, Mining and Energy Union for engaging in unlawful industrial action on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street, Docklands, and 1 Encounter Way, Docklands, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

5.                  A penalty of $5,000 be imposed on Adrian McLoughlin for engaging in unlawful industrial action on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street Docklands, and 1 Encounter Way, Docklands, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

6.                  A penalty of $5,000 be imposed on Derek Christopher for engaging in unlawful industrial action on the construction sites at 800 Collins Street, Docklands, Victoria, 833 Collins Street Docklands, and 1 Encounter Way, Docklands, Victoria on 15 and 16 October 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

28 and 29 November 2008 – 52 Flemington Road, Parkville

7.                  A penalty of $30,000 be imposed on the Construction Forestry, Mining and Energy Union for engaging in unlawful industrial action on the construction site at 52 Flemington Road, Parkville, Victoria on 28 and 29 November 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

8.                  A penalty of $5,000 be imposed on Matt Hudson for engaging in unlawful industrial action on the construction site at 52 Flemington Road, Parkville, Victoria on 28 and 29 November 2008 in contravention of s.38 of the Building and Construction Industry Improvement Act 2005 (Cth).

9.                  The penalties referred to in orders 1 to 8 above be paid to the Consolidated Revenue Fund within 28 days of the date on which this order is made.

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                                             On 27 June 2011, I made the Orders set out in the orders pages of this judgment. What follows are my reasons for doing so.

background

2                                             The proceeding brought by Murray Gregor in VID 307/2010 (‘the Gregor proceeding’) and the proceeding brought by Michelle Cozadinos in VID 369/2010 (‘the Cozadinos proceeding’) relate to the same interests and events. It is convenient to deal with the two matters together.

3                                             Murray Gregor and Michelle Cozadinos (“the applicants”) seek orders imposing pecuniary penalties on the first respondent, the Construction, Forestry, Mining and Energy Union (‘CFMEU’) and the other respondents, who are all CFMEU employees, organisers and/or members, for contraventions of ss 38 and 43 of the Building and Construction Industry Improvement Act 2005 (Cth) (‘the BCII Act’). The applicants are Australian Building and Construction Inspectors appointed under s 57 of the BCII Act, and they are therefore entitled to bring proceedings pursuant to s 49(6) of the BCII Act.

4                                             On 25 May 2011, the applicants filed a joint Statement of Agreed Facts and Admissions, submitting that a number of contraventions should be found to have been committed by the relevant respondents. The Statement of Agreed Facts and Admissions is attached to this judgment as Annexure 1 (“Annexure 1”). Annexure 2 is a table that sets out the relevant agreed contraventions and penalties for each separate respondent (“Annexure 2”). The matters proceeded by way of admitted contraventions and agreed proposed penalties.

contraventions of the bcii act

5                                             In the Cozadinos proceeding, the contraventions involve the following:

·                     unlawful industrial action at the Royal Children’s Hospital site on 15 and 16 October 2008;

·                     unlawful industrial action at building sites at Victoria Harbour on 15 and 16 October 2008; and

·                     unlawful industrial action at the Royal Children’s Hospital site on 28 and 29 November 2008.

The contraventions which are admitted in the Cozadinos proceeding involve contraventions of s 38 of the BCII Act.

6                                             In the Gregor proceeding, the contraventions involve the following:

·                     a block blockade of the Royal Children’s Hospital on 12 December 2008;

·                     industrial action at the Royal Children’s Hospital on 12 and 15 December 2008;

·                     industrial action at the Royal Children’s Hospital on 12 and 13 February 2009;

·                     industrial action on 12 and 13 February 2009 at the Olsen building site;

·                     industrial action on 12 and 13 February 2009 at Victoria Harbour;

·                     industrial action on 12 and 13 February 2009 at the Robin building site; and

·                     a blockade at the Royal Children’s Hospital between 18 February and 2 March 2009.

The contraventions which are admitted in the Gregor proceeding concern s 43 of the BCII Act.

the penalty provisions

7                                             Section 38 of the BCII Act provides that “a person must not engage in unlawful industrial action”. Conduct is unlawful industrial action if it is industrially motivated, constitutionally connected action and is not excluded action.

8                                             Section 43 of the BCII Act makes it unlawful for a corporation or organisation to organise or take action, or threaten to organise or take action, with intent to coerce another corporation.

9                                             Both s 38 and s 43 are Grade A civil penalty provisions. The maximum penalty for contravention of a Grade A penalty provision for a corporation is 1000 penalty units ($110,000). Individuals face a maximum penalty of 200 penalty units ($22,000); see s 49(1)–(2)(a) of the BCII Act and the Crimes Act 1914 (Cth) s 4AA.

10                                         In summary, the applicants and respondents agree that the appropriate penalties for the various contraventions (set out in Annexure 2) are:

·                     $303,000 for the CFMEU (for 10 contraventions, representing 27.5% of the maximum penalty);

·                     $22,000 for the Mr Reardon (for five contraventions, representing 20% of the maximum penalty);

·                     $27,000 for Mr Hudson (for five contraventions, representing 24.5% of the maximum penalty);

·                     $5,000 for Mr McLoughlin (for one contravention, representing 22.7% of the maximum penalty);

·                     $17,000 for Mr Christopher (for four contraventions, representing 19.3% of the maximum penalty);

·                     $17,000 for Mr Washington (for four contraventions, representing 19.3% of the maximum penalty);

·                     $7,000 for Mr Setka (for two contraventions, representing 31% of the maximum penalty); and

·                     $17,000 for Mr Spernovasilis (for four contraventions, representing 19.3% of the maximum penalty).

The total penalties agreed between the parties amount to $415,000.

CONSIDERATION

11                                         In light of the parties’ agreement as to the appropriate penalties to be imposed, the relevant question for this Court is whether the agreed penalty is “appropriate in all the circumstances”; see Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 per Branson, Sackville and Gyles JJ at [51]. This reasoning was adopted from NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285.

12                                         As pointed out in Mobil Oil, the determination of penalties in the context of such agreement is not an exact science. The question is not whether the Court would have arrived at the same precise figure for the penalties in the absence of the agreement of the parties. Rather, the question is whether the penalty agreed by the parties is within the permissible range of penalties for such contraventions; see Mobil Oil at [51] and [54].

13                                         The factors relevant to the determination of an appropriate penalty for a contravention of the Act have been examined by this Court. By way of example, in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 at [40] Tracey J referred to the relevant and applicable considerations. These include:

·                     the nature and extent of the conduct which led to the breaches;

·                     the circumstances in which that relevant conduct took place;

·                     the nature and extent of any loss or damage sustained as a result of the breaches;

·                     whether there had been similar previous conduct by the respondent;

·                     whether the breaches were properly distinct or arose out of the one course of conduct;

·                     the size of the business enterprise involved;

·                     whether or not the breaches were deliberate;

·                     whether senior management was involved in the breaches;

·                     whether the party committing the breach had exhibited contrition;

·                     whether the party committing the breach had taken corrective action;

·                     whether the party committing the breach had cooperated with the enforcement authorities;

·                     the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and

·                     the need for specific and general deterrence.

This list is of course not exhaustive, and as Buchanan J noted in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 580, the overall concern is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred.

THE NATURE, CIRCUMSTANCES AND PERIOD OF THE CONTRAVENING CONDUCT

14                                         The contraventions, referred to in Annexure 1, involve either unlawful industrial action or blockades of major construction sites in Victoria.

15                                         In summary, the unlawful industrial action took place at the Royal Children’s Hospital, Victoria Harbour, and the Olsen and Robin building sites. It involved strike action for approximately 16 days. The blockading took place at the Royal Children’s Hospital site and took place over approximately 9 days.

Whether the contraventions were distinct or arose out of one course of conduct

16                                         In their submissions, the parties referred to several authorities for the proposition that where a person is convicted of more than one contravention, the court may have regard to common aspects of the contraventions in question. It is unnecessary to repeat those authorities here.

17                                         The parties have agreed to group the contraventions in Annexure 1 for the purpose of assessing penalty. I am satisfied that such grouping is appropriate in the circumstances.

Contrition, corrective action and cooperation

18                                         The applicants submit that there is no evidence of contrition or any corrective action being taken by any respondent. The respondents submitted both in written submissions and at the hearing that a lack of contrition is not an aggravating circumstance that might increase penalty; see BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10].

19                                         However, despite a lack of contrition, the respondents and applicants agree that the respondents have been cooperative with the enforcement authorities. By making the admissions in Annexure 1 during an early stage of the proceedings the respondents have obviated the need for a lengthy trial, thereby saving the parties and the Court considerable time and resources. The respondents have further cooperated with the applicants in agreeing with them on the quantum of suggested penalties. Counsel for the respondents submitted, and I agree, that that such cooperative conduct is relevant and is a mitigating factor in the assessment of penalty; see Rural Press v Australian Competition and Consumer Commission (2002) 118 FCR 304 at [90].

History of similar conduct

20                                         A history of similar previous conduct is also relevant to the consideration of what an appropriate penalty will be; see Stuart-Mahoney and Duffy v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 299. However, as was pointed out by counsel for the respondent such prior contraventions should not result in the imposition of a penalty that is disproportionate to the gravity of the offences currently before the court; see Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 – 478.

21                                         At paragraph 200 – 213 of Annexure 1 the parties have set out those proceedings which relate to the matters presently before the court. The applicants also provided a table collating the prior contraventions of industrial legislation by the CFMEU, and a similar table relating to contravening conduct by the individual respondents.

22                                         It was noted by counsel for the respondents that the parties did not entirely agree as to the contents of the tables referred to above. It was submitted that not all elements of those tables should be treated as prior contraventions.

23                                         However, despite this disparity, at paragraph 213 of Annexure 1 the parties have agreed to take into account the fines, penalties and settlement monies paid in the related proceedings in reaching the overall quantum of penalties in the matters currently before the court. I am therefore satisfied that the penalties proposed by the parties are proportionate to the contraventions and take into account the history of the respondents’ conduct.

General and specific deterrence

24                                         An agreed penalty must adequately give effect to general and specific deterrence; Mobil Oil at [69]. I am satisfied that the agreed penalties proposed by the parties are sufficient to provide both general and specific deterrence.

Deliberate conduct, size of the contravener, involvement of senior members

25                                         The respondents did not contend at the hearing, or in written submissions, that their conduct was inadvertent. The CFMEU did not seek any mitigation of the penalty by virtue of its size or financial position.

26                                         It is relevant to the assessment of penalties that the contraventions involved relatively senior members within the CFMEU. At the time the contraventions occurred Mr Christopher was branch management committee member; Mr Hudson was branch vice-president and branch delegate to divisional conference; Mr Reardon was branch vice-president and branch delegate to divisional conference; Mr Setka branch assistant secretary and branch delegate to divisional conference; Mr Spernovasilis branch vice president and branch delegate to divisional conference; Mr Washington branch senior vice-president and branch delegate to divisional conference, and Mr McLouglin branch management committee member and branch delegate to divisional conference.

27                                         The positions held by the above named respondents are to be taken into account, though it is likely that some of these parties may not have been acting autonomously in contravening the BCII Act, but carrying out their roles in accordance with CFMEU policy.

Conclusion

28                                         In view of considerations discussed the agreed penalty is in the medium range for the contraventions by the CFMEU. The penalty agreed is appropriate in all the circumstances.

29                                         With regard to the individual respondents, I consider the agreed penalties to be in the medium range. I note, however, that I have some concerns about imposing a monetary penalty on the individual respondents for performing their jobs in accordance with the approach to industrial relations taken by their employer, in circumstances where that respondent has had a monetary penalty imposed on it. Absent the parties agreement I may not have imposed penalties in the same range, particularly given that in some instances the individual named respondents have had no prior contraventions found against them.

COSTS

30                                         The parties have agreed that each should bear his and its own costs of the proceeding.

Associate:

Dated: 20 July 2011

ANNEXURE 1 - JOINT STATEMENT OF AGREED FACTS AND ADMISSIONS

JOINT STATEMENT OF AGREED FACTS AND ADMISSIONS

This Statement of Agreed Facts is made for the purposes of section 191 of the Evidence Act 1995 (C’th) and the admissions made are made only for the purposes of these proceedings.

Filed by the parties to these proceedings pursuant to paragraph 2 of the Order of His Honour Justice Marshall dated 23 May 2011

INDEX

A.                    Background matters

Scope of this document

1.                       This Statement of Agreed Facts and Admissions is an agreed document of the Applicants (Gregor and Cozadinos) and the Respondents in proceedings:

(a)           VID 307 of 2010 (the Gregor proceedings); and

(b)          VID 369 of 2010 (the Cozadinos proceedings).

2.                       This joint document is submitted to the Court for the purposes of the Court determining the questions of liability of the Respondents and the appropriate penalties to be ordered against the Respondents for any contraventions found against them.

3.                       The parties have agreed to the terms of this document solely for the purposes of finalising the Gregor proceeding and the Cozadinos proceeding and no assertion or matter in this document may be relied upon as an admission against the Respondents so as to support a cause of action in any other proceeding.

Gregor

4.                       Gregor is and was at all relevant times:

(a)           an Australian Building and Construction Inspector duly appointed under s.57 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act); and

(b)          a person entitled to bring the Gregor proceedings seeking orders under s.49(1) of the BCII Act pursuant to s.49(6) of the BCII Act.

Cozadinos

5.                       Cozadinos is and was at all relevant times:

(a)           an Australian Building and Construction Inspector duly appointed under s.57 of the BCII Act; and

(b)          a person entitled to bring the Cozadinos proceedings seeking orders under s.49(1) of the BCII Act pursuant to s.49(6) of the BCII Act.

The Union

6.                       The First Respondent in the Gregor proceedings and the Second Respondent in the Cozadinos proceedings (CFMEU) is and was at all relevant times:

(a)           an organisation registered under the Workplace Relations Act 1996 (Cth) (WR Act) and by reason of it being so registered, a body corporate by reason of s.27 of Schedule 1 of the WR Act;

(b)          an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (FW(RO) Act) and by reason of it being so registered, a body corporate by reason of s.27 of the FW(RO) Act;

(c)           an “organisation” for the purposes of s.4 of the BCII Act;

(d)          an “industrial association” for the purposes of s.4 of the BCII Act;

(e)           a “building association” for the purposes of s.4 of the BCII Act; and

(f)           was a party to and bound by the Caelli Construction (Vic) Pty Ltd t/as Caelli Construction and CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 (the Caelli Agreement).

The Union organisers

7.                       The First Respondent in the Cozadinos proceedings and the Second Respondent in the Gregor proceedings (Christopher) is and was at all relevant times:

(a)           an employee of the CFMEU;

(b)          an organiser for the CFMEU;

(c)           an “officer” of the CFMEU for the purposes of s.4 and s.69(3) of the BCII Act; and

(d)          an “officer” of the CFMEU for the purposes of s.4 and s.826(2) of the WR Act.

8.                       The Third Respondent in the Gregor proceeding and the Cozadinos proceedings (Hudson) is and was at all relevant times:

(a)           an employee of the CFMEU;

(b)          an organiser for the CFMEU;

(c)           an “officer” of the CFMEU for the purposes of s.4 and s.69(3) of the BCII Act; and

(d)          an “officer” of the CFMEU for the purposes of s.4 and s.826(2) of the WR Act.

9.                       The Fourth Respondent in the Gregor proceedings and Fifth Respondent in the Cozadinos proceedings (Reardon) is and was at all relevant times:

(a)           an employee of the CFMEU;

(b)          an organiser for the CFMEU;

(c)           an “officer” of the CFMEU for the purposes of s.4 and s.69(3) of the BCII Act; and

(d)          an “officer” of the CFMEU for the purposes of s.4 and s.826(2) of the WR Act.

10.                   The Fourth Respondent in the Cozadinos proceedings (McLoughlin) is and was at all relevant times:

(a)           an employee of the CFMEU;

(b)          an organiser for the CFMEU;

(c)           an “officer” of the CFMEU for the purposes of s.4 and s.69(3) of the BCII Act; and

(a)           an “officer” of the CFMEU for the purposes of s.4 and s.826(2) of the WR Act.

11.                   The Fifth Respondent in the Gregor proceedings (Setka) is and was at all relevant times:

(a)           an employee of the CFMEU;

(b)          an “officer” of the CFMEU for the purposes of s.4 and s.69(3) of the BCII Act; and

(c)           an “officer” of the CFMEU for the purposes of s.4 and s.826(2) of the WR Act.

12.                   The Sixth Respondent in the Gregor proceedings (Spernovasilis) is and was at all relevant times:

(a)           an employee of the CFMEU;

(b)          an organiser for the CFMEU;

(c)           an “officer” of the CFMEU for the purposes of s.4 and s.69(3) of the BCII Act; and

(d)          an “officer” of the CFMEU for the purposes of s.4 and s.826(2) of the WR Act.

13.                   The Sixth Respondent in the Cozadinos proceedings and Seventh Respondent in the Gregor proceedings (Washington) is and was at all relevant times:

(a)           an employee of the CFMEU;

(b)          an “officer” of the CFMEU for the purposes of s.4 and s.69(3) of the BCII Act; and

(c)           an “officer” of the CFMEU for the purposes of s.4 and s.826(2) of the WR Act.

Caelli Constructions (Vic) Pty Ltd

14.                   Caelli Constructions (Vic) Pty Ltd (ACN 080 995 204) (Caelli), at all relevant times:

(a)           was a “constitutional corporation” for the purposes of s.4 of the BCII Act;

(b)          was a “building industry participant” for the purposes of s.4 of the BCII Act;

(c)           was contracted by Bovis Lend Lease Pty Limited (ACN 000 098 162) (Bovis) to perform building works at the following sites:

(i)            the Royal Children’s Hospital site located at 52 Flemington Road, Parkville (the RCH Site);

(ii)          the Myer Project site located at 800 Collins Street, Docklands (the Myer Site);

(iii)        the ANZ Project site located at 833 Collins Street, Docklands (the ANZ Site);

(iv)        the Merchant Project site located at 834 Bourke Street, Docklands (the Merchant Site); and

(v)          the Montage Project site located at 1 Encounter Way, Docklands (the Montage Site);

(the Myer Site, the ANZ Site, the Merchant Site and the Montage Site collectively referred to as the Victoria Harbour Sites).

(d)          was also contracted by Probuild Construction (Aust) Pty Ltd (Probuild) to perform building works at the following sites:

(i)            the Olsen Project site located at 637 Chapel Street, South Yarra (the Olsen Site); and

(ii)          the Robin Project site located at 717 Bourke Street, Docklands (the Robin Site);

(e)           employed employees to perform work at the above Sites (the Sites) (Caelli employees); and

(f)           was a party to and bound by the Caelli Agreement.

15.                   The Caelli employees were at all relevant times members of, or eligible to be members of, the CFMEU.

The building work

16.                   At all material times, the work performed by the Caelli employees at each of the Sites was “building work” for the purposes of s.5 of the BCII Act. The total value of the building projects was in excess of $2.4 billion dollars (see further paragraphs 17 to 35 below).

The RCH Site

17.                   The building works being undertaken at the RCH Site comprised the building of a new children’s hospital for Victoria. The total value of the project was approximately $1.2 billion.

18.                   In addition to Caelli, there were a number of other sub-contractors engaged to perform various works at the RCH Site. The number of these sub-contractors varied depending on the stage of the project.

19.                   The number of employees engaged by Caelli and the other
sub-contractors to work on the RCH Site also varied depending on the stage of the project.

The Myer Site

20.                   The building works being undertaken at the Myer Site comprised the building of a new head office for the Myer Group in the Docklands precinct. The total value of the project was approximately $130 million.

21.                   In addition to Caelli, there were a number of other sub-contractors engaged to perform various works at the Myer Site. The number of these sub-contractors varied depending on the stage of the project.

22.                   The number of employees engaged by Caelli and the other
sub-contractors to work on the Myer Site also varied depending on the stage of the project.

The ANZ Site

23.                   The building works being undertaken at the ANZ Site comprised the building of a new office for ANZ. The total value of the project was approximately $750 million.

24.                   In addition to Caelli, there were a number of other sub-contractors engaged to perform various works at the ANZ Site. The number of these sub-contractors varied depending on the stage of the project.

25.                   The number of employees engaged by Caelli and the other
sub-contractors to work on the ANZ Site also varied depending on the stage of the project.

The Merchant Site

26.                   The building works being undertaken at the Merchant Site comprised the building of an apartment block in the Docklands precinct. The value of the project was approximately $40 million.

27.                   In addition to Caelli, there were a number of other sub-contractors engaged to perform various works at the Merchant Site. The number of these sub-contractors varied depending on the stage of the project.

28.                   The number of employees engaged by Caelli and the other
sub-contractors to work on the Merchant Site also varied depending on the stage of the project.

The Olsen Site

29.                   The building works being undertaken at the Olsen Site comprised the building of a hotel at 637 Chapel St, South Yarra. The value of the project was approximately $100 million.

30.                   In addition to Caelli, there were a number of other sub-contractors engaged to perform various works at the Olsen Site. The number of these sub-contractors varied depending on the stage of the project.

31.                   The number of employees engaged by Caelli and the other sub-contractors to work on the Olsen Site also varied depending on the stage of the project.

The Robin Site

32.                   The building works being undertaken at the Robin Site comprised the construction of a Travelodge Hotel and offices located at 717 Bourke Street, Docklands. The value of the project was approximately $190 million.

33.                   In addition to Caelli, there were a number of other sub-contractors engaged to perform various works at the Robin Site. The number of these sub-contractors varied depending on the stage of the project.

34.                   The number of employees engaged by Caelli and the other
sub-contractors to work on the Robin Site also varied depending on the stage of the project.

The Montage Site

35.                   The building works being undertaken at the Montage Site comprised the building of a residential complex with a basement and nine levels of apartments. The total value of the project was approximately $40 million.

36.                   In addition to Caelli, there were a number of other sub-contractors engaged to perform various works on the Montage Site. The number of these sub-contractors varied depending on the stage of the project.

37.                   The number of employees engaged by Caelli and the other sub-contractors to work on the Montage Site also varied depending on the stage of the project.

The Context of the Blue Glue System: Dispute, Resolution and Implementation

38.                   In 2008 Bovis sought to implement a safety and security system for the Sites called the Blue Glue System (BGS).

39.                   The CFMEU opposed the implementation of the BGS at the Sites.

40.                   Bovis and the CFMEU were in dispute over the implementation of the BGS from in or around May 2008 (the Blue Glue dispute).

41.                   In September 2008 Bovis and the CFMEU executed a deed in resolution of the Blue Glue dispute (the Blue Glue resolution).

42.                   A term of the Blue Glue resolution was that there be meetings, at the Royal Children’s Hospital site and Victoria Harbour Sites, held by the CFMEU to explain to its members the terms of the Blue Glue resolution (the meetings).

43.                   The meetings to be held were agreed between Bovis and the CFMEU to be held on 24 September 2008.

44.                   Bovis and the CFMEU agreed those meetings would be for a duration of 30 minutes.

45.                   The CFMEU held the view that part of the Blue Glue resolution was that the BGS as implemented would not require photographs of workers.

46.                   In or about November 2008 Bovis required the taking of photographs as part of the implementation of the BGS.

B.                    24 September 2008 meetings

47.                   Hudson and Spernovasilis conducted a meeting with the Caelli employees on the RCH site. That meeting was held between approximately 12:00pm and 1:15pm on 24 September 2008. The meeting lasted longer than the 30 minutes agreed by the Blue Glue resolution because:

(a)           There were approximately 300-400 employees present at that meeting;

(b)          Hudson and Spernovasilis were required by the Blue Glue resolution to explain the detail of those terms to the employees; and

(c)           Many of the employees present asked questions of Hudson and Spernovasilis about the Blue Glue resolution and the Blue Glue dispute.

(the RCH 24 September meeting).

48.                   Christopher, Hudson and Spernovasilis conducted a meeting for the Caelli employees on the Myer Site, the Montage Site and the ANZ Site (the Victoria Harbour Sites). That meeting was held between approximately 7:00 am and 8:00 am on 24 September 2008. The meeting lasted longer than the 30 minutes allocated by the Blue Glue resolution because:

(a)           There were approximately 400-600 employees present at that meeting;

(b)          Christopher, Hudson and Spernovasilis were required by the Blue Glue Terms of Settlement to explain the detail of the Blue Glue resolution to the employees; and

(c)           Many of the employees present asked questions of Christopher, Hudson and Spernovasilis about the Blue Glue resolution and the Blue Glue dispute.

(the Victoria Harbour 24 September meeting).

49.                   By reason of:

(a)           the RCH 24 September meeting exceeding 30 minutes, Caelli docked each of the Caelli employees who attended the RCH 24 September meeting four hours’ pay; and

(b)          the Victoria Harbour 24 September meeting exceeding 30 minutes, Caelli docked each of the Caelli employees who attended the Victoria Harbour 24 September meeting four hours’ pay.

C.                     15 and 16 October 2008: Two day strike – RCH Site

The unlawful conduct

50.                   Prior to 15 October 2008 Hudson was contacted by Caelli employees at the RCH Site (the Caelli RCH employees) who complained about being docked four hours’ pay in relation to the RCH 24 September meeting (the RCH 24 September pay industrial dispute).

51.                   Prior to 7:00 am on 15 October 2008, Reardon and Hudson entered the RCH Site for the purpose of having discussions with the Caelli employees (the Caelli RCH employees) about Caelli RCH employees being docked four hours’ pay in relation to the RCH 24 September meeting.

52.                   At approximately 7:00 am on 15 October 2008, Reardon and Hudson conducted a meeting with the Caelli RCH employees at the amenities sheds on the RCH Site about the RCH 24 September pay industrial dispute).

53.                   Following the meeting described at paragraph 52 Hudson told Craig Peterson (Peterson), Senior General Foreman employed by Bovis at the RCH Site, that:

(a)           they would be back by 9:30 am if the “issue” was not resolved; and

(b)          the men were angry and would probably go home.

54.                   Following the meeting described at paragraph 52 and until approximately 9:30 am, the Caelli RCH employees performed work as normal at the RCH Site.

55.                   At approximately 9:30 am on 15 October 2008, Reardon and Hudson entered the RCH Site. Reardon and Hudson conducted a meeting with a number of the Caelli RCH employees in the lunch room at the RCH Site without the authorisation of Caelli (15 October RCH stop work meeting). Shortly after the 15 October RCH stop work meeting, Reardon and Hudson conducted another meeting with a number of other Caelli RCH employees who were performing a concrete pour, again without the authorisation of Caelli (second 15 October RCH stop work meeting).

56.                   After the 15 October RCH stop work meeting and the second 15 October RCH stop work meeting, Reardon and Hudson directed the Caelli RCH employees to not perform any further work that day and the next day at the RCH Site.

57.                   By reason of the above, the Caelli RCH employees, from approximately 10:30 am on 15 October 2008 until the completion of work that day and on 16 October 2008, refused to perform any work at the RCH Site (the RCH 15 and 16 October 2008 industrial action).

58.                   As a result of the RCH 15 and 16 October 2008 industrial action, building work that would otherwise have been performed on 15 and 16 October 2008 by the Caelli RCH employees at the RCH Site was not performed. The consequences of this included:

(a)           the programming of building works that were to be performed by the Caelli RCH employees at the RCH Site was delayed by approximately 1.5 days;

(b)          other sub-contractors engaged to perform works at the RCH Site who relied on the work being performed by Caelli RCH employees to be progressed or completed were delayed in performing their own works at the RCH Site;

(c)           rectification work was required to straighten and finish the 1/3 of the concrete slab that the Caelli RCH employees had poured on 15 October 2008 and to enable the remaining 2/3 of the slab to be poured;

(d)          Caelli was required, in order to undertake the rectification work and to make up the delays referred to above, to engage more workers or required the Caelli RCH employees to work overtime at the RCH Site. Caelli incurred additional costs as a result of these measures.

Section 38 of the BCII Act

59.                   The 15 October RCH stop work meeting, the second 15 October RCH stop work meeting and the RCH 15 and 16 October 2008 industrial action constituted a ban, limitation or restriction on the performance of building work that was adopted in connection with the blue glue dispute and the RCH 24 September pay industrial dispute.

60.                   The 15 October RCH stop work meeting, the second 15 October RCH stop work meeting and the RCH 15 and 16 October 2008 industrial action constituted a failure or refusal by the Caelli RCH employees to attend for building work or a failure or refusal by the Caelli RCH employees who attended for building work to perform any work.

61.                   The 15 October RCH stop work meeting, the second 15 October RCH stop work meeting and the RCH 15 and 16 October 2008 industrial action constituted a ban, limitation or restriction on the performance of building work in accordance with the terms of the Caelli Agreement.

62.                   The 15 October RCH stop work meeting, the second 15 October 2008 stop work meeting and the RCH 15 and 16 October 2008 industrial action was motivated by the following purposes:

(a)           supporting or advancing claims against Caelli in respect of its employment of the Caelli RCH employees (the RCH 24 September pay industrial dispute);

(b)          advancing the industrial objectives of the CFMEU (its opposition to the BGS and for the Caelli employees to be paid for 24 September 2008);

(c)           disrupting the periods of work by the Caelli RCH employees on the RCH Site.

63.                   The 15 October RCH stop work meeting, the second 15 October 2008 RCH stop work meeting and the RCH 15 and 16 October 2008 industrial action constituted action taken by an organisation (that is, the CFMEU).

64.                   Each of the 15 October RCH stop work meeting, the second 15 October 2008 RCH stop work meeting and the RCH 15 and 16 October 2008 industrial action was taken in connection with an industrial dispute (that is, the blue glue dispute and the RCH 24 September pay industrial dispute).

65.                   The 15 October RCH stop work meeting, the second 15 October 2008 RCH stop work meeting and the RCH 15 and 16 October 2008 industrial action adversely affected each of Bovis and Caelli in their respective capacities as building industry participants.

66.                   By reason of the matters referred to in paragraphs 59 to 65 the 15 October RCH stop work meeting, the second 15 October RCH stop work meeting and the RCH 15 and 16 October 2008 industrial action was “unlawful industrial action” for the purposes of s.37 of the BCII Act (the RCH October 2008 unlawful industrial action).

67.                   By engaging in the RCH 15 and 16 October 2008 unlawful industrial action, each of the Caelli RCH employees engaged in unlawful industrial action in contravention of s.38 of the BCII Act.

Reardon and Hudson’s contraventions of s.38

68.                   Through his conduct described in paragraphs 50 to 56 Reardon engaged in the RCH 15 and 16 October 2008 unlawful industrial action.

69.                   By engaging in the RCH 15 and 16 October 2008 unlawful industrial action, Reardon engaged in unlawful industrial action in contravention of s.38 of the BCII Act.

70.                   Through his conduct described in paragraphs 50 to 56 Hudson engaged in the RCH 15 and 16 October 2008 unlawful industrial action.

71.                   By engaging in the RCH 15 and 16 October 2008 unlawful industrial action, Hudson engaged in unlawful industrial action in contravention of s.38 of the BCII Act.

CFMEU liability for contraventions of s.38

72.                   At all material times Reardon and Hudson had apparent or ostensible authority to engage in the conduct referred to in paragraphs 50 to 56 for and on behalf of the CFMEU.

73.                   By reason of s.69(1) of the BCII Act, the conduct of Reardon and Hudson was, for the purposes of the BCII Act, a contravention of s.38 of the BCII Act on the part of the CFMEU in respect of the RCH 15 and 16 October 2008 unlawful industrial action.

D.                    15 and 16 October 2008: Two day strike – Victoria Harbour Sites

The unlawful conduct

74.                   Prior to 15 October 2008 McLoughlin was contacted by Caelli employees at the Victoria Harbour Sites (the Caelli Victoria Harbour employees) who complained about being docked four hours’ pay in relation to the Victoria Harbour 24 September meeting (the Victoria Harbour 24 September pay industrial dispute).

75.                   At approximately 9:10 am on 15 October 2008, McLoughlin and Christopher entered the Myer Project for the purposes of discussions with the Caelli employees about the Victoria Harbour 24 September pay industrial dispute.

76.                   McLoughlin and Christopher then entered the Montage Project Site. At approximately 9:20 am on 15 October 2008, McLoughlin and Christopher conducted a meeting with the Caelli employees working at the Victoria Harbour Sites (the Caelli Victoria Harbour employees) at the amenities sheds on the Myer Project Site without authorisation from Caelli about the Victoria Harbour 24 September pay industrial dispute (15 October Victoria Harbour stop work meeting).

77.                   At the 15 October Victoria Harbour stop work meeting, McLoughlin and Christopher directed the Caelli Victoria Harbour employees not toperform any further work that day or the next day at their respective Victoria Harbour Sites.

78.                   By reason of the above, most of the Victoria Harbour employees, from approximately 9.45 am on 15 October 2008 until the completion of work that day and on 16 October 2008, refused to perform any work at their respective Victoria Harbour Sites (the Victoria Harbour 15 and 16 October 2008 industrial action).

79.                   As a result of the Victoria Harbour 15 and 16 October 2008 industrial action, building work that would otherwise have been performed on 15 and 16 October 2008 by the Victoria Harbour employees at the Victoria Harbour Sites was not performed. The consequences of this included:

(a)           the programming of building works that were to be performed by the Victoria Harbour employees at the Victoria Harbour Site was delayed by approximately 1.5 days;

(b)          other sub-contractors engaged to perform works at the Victoria Harbour Sites who relied on the work being performed by Caelli Victoria Harbour employees to be progressed or completed were delayed in performing their own works at the Victoria Harbour Sites; and

(c)           Caelli was required, in order to make up the delays referred to above, to engage more workers or required the Caelli Victoria Harbour employees to work overtime at the Victoria Harbour Sites. Caelli incurred additional costs as a result of these measures.

Section 38 of the BCII Act

80.                   The 15 October Victoria Harbour stop work meeting and the Victoria Harbour October 2008 industrial action constituted a ban, limitation or restriction on the performance of building work that was adopted in connection with the blue glue dispute and the Victoria Harbour 24 September pay industrial dispute.

81.                   The 15 October Victoria Harbour stop work meeting and the Victoria Harbour 15 and 16 October 2008 industrial action constituted a failure or refusal by the Caelli Victoria Harbour employees to attend for building work or a failure or refusal by the Caelli Victoria Harbour employees who attended for building work to perform any work.

82.                   The 15 October Victoria Harbour stop work meeting and the Victoria Harbour 15 and 16 October 2008 industrial action constituted a ban, limitation or restriction on the performance of building work in accordance with the terms of the Caelli Agreement.

83.                   The 15 October Victoria Harbour stop work meeting and the Victoria Harbour 15 and 16 October 2008 industrial action was motivated by the following purposes:

(a)           supporting or advancing claims against Caelli in respect of its employment of the Caelli Victoria Harbour employees (the Victoria Harbour 24 September pay industrial dispute);

(b)          advancing the industrial objectives of the CFMEU (its opposition to the BGS and for the Caelli Victoria Harbour employees to be paid for 24 September 2008); and

(c)           disrupting the periods of work by the Caelli Victoria Harbour employees on the Victoria Harbour Sites.

84.                   The 15 October Victoria Harbour stop work meeting and the Victoria Harbour 15 and 16 October 2008 industrial action constituted action taken by an organisation (that is, the CFMEU).

85.                   Each of the 15 October Victoria Harbour stop work meeting and the Victoria Harbour 15 and 16 October 2008 industrial action was taken in connection with an industrial dispute (that is, the blue glue dispute and the Victoria Harbour 24 September pay industrial dispute).

86.                   The 15 October Victoria Harbour stop work meeting and the Victoria Harbour 15 and 16 October 2008 industrial action adversely affected each of Bovis and Caelli in their respective capacities as building industry participants.

87.                   By reason of the matters referred to in paragraphs 80 to 86 the 15 October Victoria Harbour stop work meeting and the Victoria Harbour 15 and 16 October 2008 industrial action was “unlawful industrial action” for the purposes of s.37 of the BCII Act (the Victoria Harbour 15 and 16 October 2008 unlawful industrial action).

88.                   By engaging in the Victoria Harbour 15 and 16 October 2008 unlawful industrial action, each of the Caelli Victoria Harbour employees engaged in unlawful industrial action in contravention of s.38 of the BCII Act.

McLoughlin’s and Christopher’s contraventions of s.38

89.                   Through his conduct referred to in paragraphs 74 to 77 McLoughlin engaged in the Victoria Harbour 15 and 16 October 2008 unlawful industrial action.

90.                   By engaging in the Victoria Harbour 15 and 16 October 2008 unlawful industrial action, McLoughlin engaged in unlawful industrial action in contravention of s.38 of the BCII Act.

91.                   Through his conduct referred to in paragraphs 74 to 77 Christopher engaged in the Victoria Harbour 15 and 16 October 2008 unlawful industrial action.

92.                   By engaging in the Victoria Harbour 15 and 16 October 2008 unlawful industrial action, Christopher engaged in unlawful industrial action in contravention of s.38 of the BCII Act.

CFMEU liability for contraventions of s.38

93.                   At all material times McLoughlin and Christopher had apparent or ostensible authority to engage in the conduct referred to in paragraphs 74 to 77 for and on behalf of the CFMEU.

94.                   By reason of s.69(1) of the BCII Act, the conduct of McLoughlin and Christopher was, for the purposes of the BCII Act, a contravention of s.38 of the BCII Act on the part of the CFMEU in respect of the Victoria Harbour 15 and 16 October 2008 unlawful industrial action.

E.                    28 and 29 November 2008: Two day strike – RCH Site

The unlawful conduct

95.                   Prior to 7:00 am on 28 November 2008, Hudson entered the RCH Site without notice for the purpose, or for purposes that included the purpose of having discussions with the Caelli employees.

96.                   At approximately 7:10 am on 28 November 2008, Hudson conducted a meeting with approximately 220 of the Caelli RCH employees in the lunch room on the RCH Site (the 28 November 2008 stop work meeting).

97.                   During the 28 November 2008 stop work meeting, the implementation of the BGS at the RCH Site and the Victoria Harbour Sites was discussed, including Bovis requiring the taking of photographs as part of the implementation of the BGS.

98.                   At the 28 November 2008 stop work meeting, Hudson directed the Caelli RCH employees not to perform any further work that day or the next day at the RCH Site.

99.                   By reason of the above, the Caelli RCH employees, from approximately 7:30 am on 28 November 2008 until the completion of work that day and on 29 November 2008, refused to perform any work at the RCH Site (the RCH 28 and 29 November 2008 industrial action).

Section 38 of the BCII Act

100.               The 28 November 2008 stop work meeting and the RCH 28 and 29 November 2008 industrial action constituted a ban, limitation or restriction on the performance of building work that was adopted in connection with the Blue Glue dispute.

101.               The 28 November 2008 stop work meeting and the RCH 28 and 29 November 2008 industrial action constituted a failure or refusal by the Caelli RCH employees to attend for building work or a failure or refusal by the Caelli RCH employees who attended for building work to perform any work.

102.               The 28 November 2008 stop work meeting and the RCH 28 and 29 November 2008 industrial action constituted a ban, limitation or restriction on the performance of building work in accordance with the terms of the Caelli Agreement.

103.               The 28 November 2008 stop work meeting and the RCH 28 and 29 November 2008 industrial action was motivated by the following purposes:

(a)           supporting or advancing claims against Caelli in respect of its employment of the Caelli RCH employees (the claims in relation to the Blue Glue dispute);

(b)          advancing industrial objectives of the CFMEU (its opposition to the BGS); and

(c)           disrupting the performance of work, being the performance of work by the Caelli RCH employees at the RCH Site.

104.               The 28 November 2008 stop work meeting and the RCH 28 and 29 November 2008 industrial action constituted action which was taken by an organisation (that is, the CFMEU).

105.               The 28 November 2008 stop work meeting and the RCH 28 and 29 November 2008 industrial action constituted action that was taken in connection with an industrial dispute (that is, the blue glue dispute).

106.               The 28 November 2008 stop work meeting and the RCH 28 and 29 November 2008 industrial action adversely affected each of Bovis and Caelli in their respective capacities as building industry participants.

107.               By reason of the matters referred to in paragraphs 100 to 106 the RCH 28 and 29 November 2008 industrial action was “unlawful industrial action” for the purposes of s.37 of the BCII Act (the RCH November 2008 unlawful industrial action).

108.               By engaging in the RCH 28 and 29 November 2008 unlawful industrial action, each of the Caelli RCH employees engaged in unlawful industrial action in contravention of s.38 of the BCII Act.

Hudson’s contraventions of s.38

109.               By his conduct referred to in paragraphs 95 to 98Hudson engaged in the RCH 28 and 29 November 2008 unlawful industrial action.

110.               By engaging in the RCH 28 and 29 November 2008 unlawful industrial action, Hudson engaged in unlawful industrial action in contravention of s.38 of the BCII Act.

CFMEU liability for contraventions of s.38

111.               At all material times Hudson had apparent or ostensible authority to engage in the conduct referred to in paragraphs 95 to 98 for and on behalf of the CFMEU.

112.               By reason of s.69(1) of the BCII Act, the conduct of Hudson was, for the purposes of the BCII Act, a contravention of s.38 of the BCII Act on the part of the CFMEU in respect of the RCH 28 and 29 November 2008 unlawful industrial action.

12 December 2008: Blockade at the RCH Site

Background

113.               From the beginning of 2008 the CFMEU formed the view that Bovis and Caelli had changed their existing practice and no longer employed or recognised CFMEU delegates elected at their sites.

114.               The CFMEU held the view, that as part of the resolution of the Blue Glue dispute, but not contained in the deed, was an agreement that Bovis would recognise CFMEU delegates elected at its sites.

115.               At the meeting at the Royal Children’s Hospital, held on 24 September 2008, to explain the resolution of the Blue Glue dispute, Joe Angelino (Angelino) was elected as a CFMEU delegate and occupational health and safety (OHS) representative representing the approximately 250 CFMEU members at the RCH site.

116.               Shortly after 24 September 2008 the CFMEU formed the view that Bovis was not complying with its agreement to recognise CFMEU delegates and was not recognising Angelino.

117.               Angelino:

(a)           commenced employment with Caelli in or around May 2002;

(b)          was at all material times until 11 December 2008, employed at the RCH Site; and

(c)           was at all material times a member of the CFMEU.

118.               On the morning of 11 December 2008 Angelino attended a meeting of CFMEU delegates.

119.               On 11 December 2008, Angelino was directed by Frank Fedele (Fedele), a Caelli Site Manager, to stop performing work at the RCH Site and to attend for work at the Caelli Yard in Craigieburn (the Yard) (the Yard direction).

120.               The CFMEU and its officials and organisers believed that the Yard direction was an attempt by Caelli to remove Angelino from the RCH Site so that he could not perform his duties as a CFMEU shop steward and OHS representative at the RCH Site.

121.               The CFMEU and its officials and organisers believed that the Yard direction was a precursor to the termination of Angelino’s employment. That belief was in part based on the conduct of Caelli representatives, in the weeks preceding 11 December 2008, directing the CFMEU assistant delegate to attend for work at the Yard and then shortly thereafter terminating the employment of the CFMEU assistant delegate.

122.               The CFMEU and its officials and organisers believed that the conduct of Caelli representatives, from 24 September 2008 to 11 December 2008 inclusive, was conduct that prejudiced Angelino in his employment and/or threatened the termination of his employment.

123.               From approximately 7.00 am until 1.00 pm on 12 December 2008, each of Hudson, Washington, Christopher, Setka, Spernovasilis and Reardon arrived at the RCH Site and parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site. Angelino was present at the front entrance gate to the RCH Site at this time.

124.               At approximately 7.10 am on 12 December 2008, Hudson and Washington told Craig Peterson (Peterson), the Senior General Foreman at the RCH Site employed by Bovis, that they were waiting for Guy Caelli (a director of Caelli) to arrive at the RCH Site. Hudson said that Angelino had been relocated to the Yard.

125.               At approximately 9.00 am on 12 December 2008, Hudson and Angelino came onto the RCH Site to request a meeting with Peterson to discuss Angelino. During this conversation, Hudson told Peterson that the gates to the RCH Site will open once a meeting with Guy Caelli is organised.

126.               The blockade described in paragraphs 123 to 125 (the RCH 12 December 2008 blockade) prevented trucks from delivering concrete, steel and other building materials to the RCH site between 7.10 am until 1.00 pm on 12 December 2008.

127.               During the RCH 12 December 2008 blockade no persons employed at the site were prevented access to the RCH Site and all person employed at the RCH Site continued to carry out their duties. However, some employees the RCH Site, including the Caelli RCH employees, were prevented from performing work that required the use of the concrete, steel and other building materials that were unable to be delivered due to the RCH 12 December 2008 blockade.

128.               The RCH 12 December 2008 blockade also prevented waste management trucks from entering the RCH Site to collect waste that had accumulated on the RCH Site.

Hudson, Washington, Setka, Spernovasilis, Reardon and Christopher’s contravention of s.43

129.               When engaging in the RCH 12 December 2008 blockade industrial action, each of Hudson, Washington, Setka, Spernovasilis, Reardon and Christopher acted with an intent to coerce Caelli into reversing the decision to direct Angelino to work at the Yard and to instead allocate particular responsibilities to Angelino, that is, to re-deploy Angelino in his role as a carpenter, a delegate and OHS representative at the RCH Site.

130.               By engaging in the RCH 12 December 2008 blockade industrial action, each of Hudson, Washington, Setka, Spernovasilis, Reardon and Christopher breached s.43(1) of the BCII Act.

CFMEU liability for contraventions of s.43

131.               At all material times, each of Hudson, Washington, Setka, Spernovasilis, Reardon and Christopher had apparent or ostensible authority to engage in the conduct referred to in paragraphs 123 to 125 for and on behalf of the CFMEU.

132.               By reason of s.69(1) of the BCII Act, the conduct of Hudson, Washington, Setka, Spernovasilis, Reardon and Christopher was, for the purposes of the BCII Act, a contravention of s.43(1) of the BCII Act on the part of the CFMEU in respect of the RCH 12 December 2008 blockade.

F.                     12 and 15 December 2008: Strike action at the RCH Site

Industrial action

133.               At some time after 10.30 am on the morning of 12 December 2008, Fedele, on behalf of Caelli, withdrew the Yard direction and stated that Angelino should return to work at the RCH Site. Angelino requested a discussion with Guy Caelli. Angelino’s intention in seeking a discussion with Guy Caelli was to complain about his treatment prior to returning to work at the RCH Site.

134.               At approximately 12.00pm on 12 December 2008, Fedele, on behalf of Caelli, stated to Angelino that his employment was terminated.

135.               At approximately 12.30 pm on 12 December 2008, Hudson and Washington entered the RCH Site. On arrival at the RCH Site, Hudson told Peterson words to the effect that they were “going to meet the blokes” as “Joe [Angelino] had just got the arse”.

136.               While on the RCH Site, Hudson and Washington conducted a meeting with approximately 180 Caelli employees working at the RCH Site (Caelli RCH employees).

137.               At the meeting described in paragraph 136, Washington and Hudson directed the Caelli RCH employees not to perform any further work.

138.               By reason of the matters referred to in the paragraphs 133 to 137 above, approximately 180 Caelli RCH employees, from approximately 12.30 pm on 12 December 2008 until the conclusion of the working day and on the next working day on 15 December 2008, refused to perform any work at the RCH Site (the RCH 12 and 15 December 2008 industrial action).

139.               As a result of the RCH 12 and 15 December 2008 industrial action, building work that would otherwise have been performed on 12 and 15 December 2008 by the Caelli RCH employees at the RCH Site was not performed. The consequences of this included:

(a)           The programming for the building works that were to be performed by the Caelli RCH employees at the RCH Site was delayed by 1.5 days;

(b)          Other sub-contractors engaged to perform works at the RCH Site who relied on the work being performed by Caelli RCH employees to be progressed or completed were delayed in performing their own works at the RCH Site; and

(c)           Caelli was required, in order to make up the delays referred to above, to engage more workers or required the Caelli RCH employees to work overtime at the RCH Site. Caelli incurred additional costs as a result of these measures.

Hudson and Washington’s contravention of s.43

140.               When directing the Caelli RCH employees to engage in the RCH 12 and 15 December 2008 industrial action, each of Hudson and Washington acted with an intent to coerce Caelli into reversing its decision to terminate Angelino’s employment and instead to engage Angelino as an employee and allocate particular responsibilities to Angelino, that is, to re-deploy Angelino in his role as a carpenter, a delegate and OHS representative at the RCH Site.

141.               By engaging in the conduct described at paragraphs 133 to 137, each of Hudson and Washington breached s.43(1) of the BCII Act.

CFMEU liability for contraventions of s.43

142.               At all material times, each of Hudson and Washington had apparent or ostensible authority to engage in the conduct referred to in paragraphs 133 to 137 for and on behalf of the CFMEU.

143.               By reason of s.69(1) of the BCII Act, the conduct of Hudson and Washington was, for the purposes of the BCII Act, a contravention of s.43(1) of the BCII Act on the part of the CFMEU in respect of the RCH 12 and 15 December 2008 industrial action.

G.                    12 and 13 February 2009: Strike action at the RCH Site

Direction to Angelino to work at the Myer Site

144.               On 9 February 2009, Caelli sent Angelino a letter offering to reinstate Angelino and directing that he report to the Myer Site.

145.               On 10 February 2009, the CFMEU sent to Caelli a letter stating that:

(a) Angelino was unable to attend for work that day due to personal matters;

(b)         Caelli’s direction requiring Angelino to attend for work at the Myer site was in contravention of the freedom of association provisions of the Workplace Relations Act 1996; and

(c)          Without conceding the lawfulness of the direction, Angelino would attend for work on 11 February 2009.

146.               On 11 February 2009, Angelino attended the Myer Site and undertook a partial induction. During the induction, Angelino refused to have his photograph taken for a security pass. Shortly after undertaking the partial induction, Angelino left the Myer Project Site.

Industrial action

147.               At approximately 6.30 am on 12 February 2009, Washington and Hudson attended the RCH Site and conducted a meeting with 180 RCH Caelli employees. At this meeting, Washington and Hudson directed those Caelli RCH employees not to perform any further work at the RCH Site.

148.               By reason of Hudson’s and Washington’s conduct referred to in paragraph 147:

(a)           approximately 130 Caelli RCH employees, from approximately 7.00 am on 13 February 2009 until the conclusion of the working day, refused to perform work at the RCH Site; and

(b)          approximately 50 Caelli RCH employees, from approximately 11.30 am on 13 February 2009 until the conclusion of the working day, refused to perform work at the RCH Site (the RCH 12 and 13 February 2009 industrial action).

149.               As a result of the RCH 12 and 13 February 2009 industrial action, building work that would otherwise have been performed on 12 and 13 February 2009 by the Caelli RCH employees at the RCH Site was not performed. The consequences of this included:

(a)           The programming for the building works that were to be performed by the Caelli RCH employees at the RCH Site was delayed by approximately two days;

(b)          Other sub-contractors engaged to perform works at the RCH Site who relied on the work being performed by Caelli RCH employees to be progressed or completed were delayed in performing their own works at the RCH Site; and

(c)           Caelli was required, in order to make up the delays referred to above, to engage more workers or required the RCH Caelli employees to work overtime at the RCH Site. Caelli incurred additional costs as a result of these measures.

Hudson and Washington’s contravention of s.43

150.               When directing the Caelli RCH employees to engage in the RCH 12 and 13 February 2009 industrial action, each of Hudson and Washington acted with an intent to coerce Caelli into reversing its decision to terminate Angelino’s employment and instead to engage Angelino as an employee and allocate particular responsibilities to Angelino, that is, to re-deploy Angelino in his role as a carpenter, a delegate and OHS representative at the RCH Site.

151.               By engaging in the conduct described at paragraph 147, each of Hudson and Washington breached s.43(1) of the BCII Act.

CFMEU liability for contraventions of s.43

152.               At all material times, each of Hudson and Washington had apparent or ostensible authority to engage in the conduct referred to in paragraph 147 for and on behalf of the CFMEU.

153.               By reason of s.69(1) of the BCII Act, the conduct of Hudson and Washington was, for the purposes of the BCII Act, a contravention of s.43(1) of the BCII Act on the part of the CFMEU in respect of the RCH 12 and 13 February 2009 industrial action.

H.                   12 and 13 February 2009: Strike action at the Olsen Site

Industrial action

154.               At approximately 7.00 am on 12 February 2009, a CFMEU official, Adrian McLoughlin (McLoughlin) attended the Olsen Site and conducted a meeting with 32 Caelli employees working at the Olsen Site (the Caelli Olsen employees). At this meeting, McLoughlin directed the Caelli Olsen employees not to perform any further work.

155.               By reason of McLoughlin’s conduct referred to in paragraph 154 , the Caelli Olsen employees refused to perform work at the Olsen Site on 12 and 13 February 2009 (the Olsen 12 and 13 February 2009 industrial action).

156.               As a result of the Olsen 12 and 13 February 2009 Olsen industrial action, building work that would otherwise have been performed on 12 and 13 February 2009 by the Caelli Olsen employees at the Olsen Site was not performed. The consequences of this included:

(a)           The programming for the building works that were being performed by the Caelli Olsen employees at the Olsen Site was delayed by approximately two days;

(b)          Other sub contractors engaged to perform works at the Olsen Site who relied on the work being performed by the Caelli Olsen employees to be progressed or completed were delayed in performing their own works at the Olsen Site; and

(c)           Caelli was required, in order to make up the delays referred to above, to engage more workers or required the Caelli Olsen employees to work overtime at the Olsen Site. Caelli incurred additional costs as a result these measures.

McLoughlin’s contravention of s.43

157.               When directing the Caelli Olsen employees to engage in the Olsen February 2009 industrial action on 12 and 13 February 2009, McLoughlin acted with an intent to coerce Caelli into reversing its decision to terminate Angelino’s employment and to instead engage Angelino as an employee and allocate particular responsibilities to Angelino, that is, to re-deploy Angelino in his role as a carpenter, a delegate and OHS representative at the RCH Site.

158.               By engaging in the conduct described at paragraph 154 , McLoughlin breached s.43(1) of the BCII Act.

CFMEU liability for contraventions of s.43

159.               At all material times, McLoughlin had apparent or ostensible authority to engage in the conduct referred to in paragraph 154 for and on behalf of the CFMEU.

160.               By reason of s.69(1) of the BCII Act, the conduct of McLoughlin was, for the purposes of the BCII Act, a contravention of s.43(1) of the BCII Act on the part of the CFMEU in respect of the Olsen 12 and 13 February 2009 industrial action.

I.                       12 and 13 February 2009: Strike action at the Myer Site, ANZ Site and Merchant Site

Industrial action

161.               At approximately 6.50 am on 12 February 2009, Christopher, Reardon and Spernovasilis conducted a meeting at the Myer Site with 48 Caelli employees working at the Myer Site (the Caelli Myer employees), 23 Caelli employees working at the ANZ Site (the Caelli ANZ employees) and 32 Caelli employees working at the Merchant Site (the Caelli Merchant employees).

162.               At the meeting described at paragraph 161, Christopher, Reardon and Spernovasilis directed the Caelli Myer employees, the Caelli ANZ employees and the Caelli Merchant employees not to perform any further work.

163.               By reason of each of the matters above, the Caelli Myer employees, the Caelli ANZ employees and the Caelli Merchant employees refused to perform work at the Myer Site, the ANZ Site and the Merchant Site respectively on 12 and 13 February 2009 (the Victoria Harbour 12 and 13 February 2009 industrial action).

164.               As a result of the Victoria Harbour 12 and 13 February 2009 industrial action, building work that would otherwise have been performed on 12 and 13 February 2009 by the Caelli Myer employees, the Caelli ANZ employees and the Caelli Merchant employees at the Myer Site, the ANZ Site and the Merchant Site respectively was not performed. The consequences of this included:

(a)           The programming for the building works that were being performed by the Caelli Myer employees, the Caelli ANZ employees and the Caelli Merchant employees at the Myer Site, the ANZ Site and the Merchant Site respectively was delayed by approximately two days;

(b)          Other sub-contractors engaged to perform works at the Myer Site, the ANZ Site and the Merchant Site who relied on the work being performed by the Caelli Myer employees, the Caelli ANZ employees and the Caelli Merchant employees to be progressed or completed were delayed in performing their own works at those sites; and

(c)           Caelli was required, in order to make up the delays referred to above, to engage more workers or required the Caelli Myer employees, the Caelli ANZ employees and the Caelli Merchant employees to work overtime at the Myer Site, the ANZ Site and the Merchant Site respectively. Caelli incurred additional costs as a result of these measures.

Christopher, Reardon and Spernovasilis’ contravention of s.43

165.               When directing the Caelli Myer employees, the Caelli ANZ employees and the Caelli Merchant employees to engage in the Victoria Harbour 12 and 13 February 2009 industrial action, each of Christopher, Reardon and Spernovasilis acted with an intent to coerce Caelli into reversing its decision to terminate Angelino’s employment and instead to engage Angelino as an employee and allocate particular responsibilities to Angelino, that is, to re-deploy Angelino in his role as a carpenter, a delegate and OHS representative at the RCH Site.

166.               By engaging in the conduct described in paragraph 161 to 162 , each of Christopher, Reardon and Spernovasilis breached s.43(1) of the BCII Act.

CFMEU liability for contraventions of s.43

167.               At all material times, each of Christopher, Reardon and Spernovasilis had apparent or ostensible authority to engage in the conduct referred to in paragraphs 161 to 162 for and on behalf of the CFMEU.

168.               By reason of s.69(1) of the BCII Act, the conduct of Christopher, Reardon and Spernovasilis was, for the purposes of the BCII Act, a contravention of s.43(1) of the BCII Act on the part of the CFMEU in respect of the Victoria Harbour 12 and 13 February 2009 industrial action.

J.                     12 and 13 February 2009: Strike action at the Robin Site

Industrial action

169.               At approximately 7.00 am on 12 February 2009, Spernovasilis and Reardon attended the Robin Site and conducted a meeting with approximately 124 Caelli employees working at the Robin Site (the Caelli Robin employees). At this meeting Spernovasilis and Reardon directed the Caelli Robin employees not to perform any further work.

170.               By reason of the matters above, the Caelli Robin employees refused to perform work at the Robin Site on 12 and 13 February 2009 (the Robin 12 and 13 February 2009 industrial action).

171.               As a result of the Robin 12 and 13 February 2009 industrial action, building work that would otherwise have been performed on 12 and 13 February 2009 by the Caelli Robin employees at the Robin Site was not performed. The consequences of this included:

(a)           The programming for the building works that were being performed by the Caelli Robin employees at the Robin Site was delayed by approximately two days;

(b)          Other sub-contractors engaged to perform works at the Robin Site who relied on the work being performed by Caelli Robin employees to be progressed or completed were delayed in performing their own works at the Robin Site; and

(c)           Caelli was required, in order to make up the delays referred to above, to engage more workers or required the Caelli Robin employees to work overtime at the Robin Site. Caelli incurred additional costs as a result of these measures.

Spernovasilis and Reardon’s contravention of s.43

172.               When directing the Caelli Olsen employees to engage in the Robin 12 and 13 February 2009 industrial action, each of Spernovasilis and Reardon acted with an intent to coerce Caelli into reversing its decision to terminate Angelino’s employment and instead to engage Angelino as an employee and allocate particular responsibilities to Angelino, that is to re-deploy Angelino in his role as a carpenter, a delegate and OHS representative at the RCH Site.

173.               By engaging in the conduct described in paragraph 169, each of Spernovasilis and Reardon breached s.43(1) of the BCII Act.

CFMEU liability for contraventions of s.43

174.               At all material times, each of Spernovasilis and Reardon had apparent or ostensible authority to engage in the conduct referred to in paragraph 169 for and on behalf of the CFMEU.

175.               By reason of s.69(1) of the BCII Act, the conduct of Spernovasilis and Reardon was, for the purposes of the BCII Act, a contravention of s.43(1) of the BCII Act on the part of the CFMEU in respect of the Robin 12 and 13 February 2009 industrial action.

K.                    18 February to 2 March 2009: Blockade at the RCH Site

The blockade

176.               From approximately 5.30 am and throughout the day on 18 February 2009, each of Hudson, Washington, Christopher, Setka, Spernovasilis, Reardon and another CFMEU official, Frank O’Grady (O’Grady), parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

177.               At approximately 7.00 am on 18 February 2009, Hudson told Stephen Broadhead (Broadhead), the Industrial Relations Manager at Bovis, that the cause of the blockade was Angelino “not being employed at RCH to represent the men”. Hudson also said to Broadhead that the “cars are staying until all the issues are resolved.”

178.               From approximately 5.30 am and throughout the day on 19 February 2009, each of Hudson, Christopher, and three other CFMEU officials, the President of the Victorian Branch of the CFMEU, Ralph Edwards (Edwards), Gerard Benstead (Benstead) and Brendan Murphy (Murphy) parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

179.               Further, from approximately 5.00 am and throughout the day on 20 February 2009, each of Hudson, Washington, Setka, Spernovasilis, Reardon and Edwards parked their vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

180.               From approximately 5.00 am and throughout the day on 21 February 2009, each of Hudson, Reardon and Spernovasilis parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

181.               From approximately 6.00 am and throughout the day on 22 February 2009, each of Hudson and Setka parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

182.               From approximately 5.30 am and throughout the day on 23 February 2009, each of Hudson, Washington, Christopher, O’Grady, and a number of CFMEU officials: Alex Tadic (Tadic), Rob Graumanns (Graumanns), Danny Berardi (Berardi), Mick Powell (Powell), Steve Long (Long) and Murphy parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

183.               From approximately 6.00 am on 24 February 2009 and throughout the day, each of Reardon and Spernovasilis formed part of a picket line such as to block the front entrance gate to the RCH Site.

184.               Further, from approximately 6.00 am on 24 February 2009 and throughout the day, each of Reardon and Spernovasilis parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

185.               From approximately 6.00 am and throughout the day on 25 February 2009, each of Hudson, Christopher, Washington, Spernovasilis, Edwards, and another CFMEU official, Fergal Doyle (Doyle) parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

186.               From approximately 6.00 am and throughout the day on 26 February 2009, various CFMEU officials parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

187.               From approximately 6.00 am and throughout the day on 27 February 2009, various CFMEU officials parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

188.               From approximately 7.00 am and throughout the day on 2 March 2009, each of Christopher, Hudson, Washington, Tadic, Reardon, Berardi, Powell, Long, Graumanns, Doyle and two other CFMEU officials: Val Cakarun (Cakarun), Tom Watson (Watson) formed part of a picket line such as to block the front entrance gate to the RCH Site.

189.               Further, from approximately 7.50 am and throughout the day on 2 March 2009 until 4.00 pm, each of Christopher, Hudson, Washington, Tadic, Reardon, Cakarun, Watson, Berardi, Powell, Long, Graumanns and Doyle parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH Site.

190.               The blockade described in paragraphs 176 to 189 (the RCH 18 February to 2 March 2009 blockade) prevented trucks from delivering concrete, steel and other building materials to the RCH site on 18, 19, 23, 24, 25, 26, 27 February 2009 and on 2 March 2009.

191.                      During the RCH 18 February to 2 March 2009 blockade no persons employed at the site were prevented access to the RCH Site and all person employed at the RCH Site continued to carry out their duties. However, some employees the RCH Site, including the Caelli RCH employees, were prevented from performing work that required the use of the concrete, steel and other building materials that were unable to be delivered due to the RCH 18 February to 2 March 2009 blockade.

192.               The RCH 18 February to 2 March 2009 blockade also prevented waste management trucks from entering the RCH Site to collect waste that had accumulated on the RCH Site.

193.               Due to the RCH 18 February to 2 March 2009 blockade, on 20 February 2009, Caelli did not organise any deliveries of materials to the RCH Site.

Hudson, Washington, Setka, Spernovasilis, Reardon and Christopher’s contravention of s.43

194.               When engaging in the RCH 18 February to 2 March 2009 blockade, each of Hudson, Washington, Setka, Spernovasilis, Reardon and Christopher acted with an intent to coerce Caelli into reversing its decision to terminate Angelino’s employment and instead to engage Angelino as an employee and allocate particular responsibilities to Angelino, that is, to re-deploy Angelino in his role as a carpenter, a delegate and OHS representative at the RCH Site.

195.               By engaging in the conduct referred to in paragraphs 176 to 189 , each of Hudson, Washington, Setka, Spernovasilis, Reardon and Christopher breached s.43(1) of the BCII Act.

CFMEU liability for contraventions of s.43

196.               At all material times, each of Hudson, Washington, Setka, Spernovasilis, Reardon and Christopher had apparent or ostensible authority to engage in the conduct referred to in paragraphs 176 to 189 for and on behalf of the CFMEU.

197.               By reason of s.69(1) of the BCII Act, the conduct of Hudson, Washington, Setka, Spernovasilis, Reardon and Christopher was, for the purposes of the BCII Act, a contravention of s.43(1) of the BCII Act on the part of the CFMEU in respect of the RCH 18 February to 2 March 2009 blockade.

L.                     Summary of admitted contraventions

198.               The Respondents admit that on the basis of the agreed facts set out above, the Court is able to make findings in respect of the Cozadinos proceedings that:

(a)           The CFMEU contravened s.38 of the BCII Act in respect of each of the following matters:

(i)            the RCH 15 and 16 October 2008 unlawful industrial action;

(ii)          the Victoria Harbour 15 and 16 October 2008 unlawful industrial action; and

(iii)        the RCH 28 and 29 November 2008 unlawful industrial action.

(3 contraventions in total)

(b)          Hudson contravened s.38 of the BCII Act in respect of each of the following matters:

(i)            the RCH 15 and 16 October 2008 unlawful industrial action; and

(ii)          the RCH 28 and 29 November 2008 unlawful industrial action.

(2 contraventions in total);

(c)           Reardon contravened s.38 of the BCII Act in respect of the RCH 15 and 16 October 2008 unlawful industrial action (1 contravention);

(d)          Christopher contravened s.38 of the BCII Act in respect of the Victoria Harbour 15 and 16 October 2008 unlawful industrial action (1 contravention); and

(e)           McLoughlin contravened s.38 of the BCII Act in respect of the Victoria Harbour 15 and 16 October 2008 unlawful industrial action (1 contravention).

199.               The Respondents admit that on the basis of the agreed facts set out above, the Court is able to make findings that, in respect of the Gregor proceedings:

(a)           the CFMEU contravened s.43 of the BCII Act in respect of each of the following matters:

(i)            the RCH 12 December 2008 blockade;

(ii)          the RCH 12 and 15 December 2008 industrial action;

(iii)        the RCH 12 and 13 February 2009 industrial action;

(iv)        the Olsen 12 and 13 February 2009 industrial action;

(v)          the Victoria Harbour 12 and 13 February 2009 industrial action;

(vi)        the Robin 12 and 13 February 2009 industrial action; and

(vii)      the RCH 18 February to 2 March 2009 blockade;

(7 contraventions in total)

(b)          Hudson contravened s.43 of the BCII Act in respect of each of the following matters:

(i)            the RCH 12 December 2008 blockade;

(ii)          the RCH 12 and 15 December 2008 industrial action;

(iii)        the RCH 12 and 13 February 2009 industrial action; and

(iv)        the RCH 18 February to 2 March 2009 blockade;

(4 contraventions in total)

(c)           Washington contravened s.43 of the BCII Act in respect of each of the following matters:

(i)            the RCH 12 December 2008 blockade;

(ii)          the RCH 12 and 15 December 2008 industrial action;

(iii)        the RCH 12 and 13 February 2009 industrial action; and

(iv)        the RCH 18 February to 2 March 2009 blockade;

(4 contraventions in total)

(d)          Christopher contravened s.43 of the BCII Act in respect of each of the following matters:

(i)            the RCH 12 December 2008 blockade;

(ii)          the Victoria Harbour 12 and 13 February 2009 industrial action; and

(iii)        the RCH 18 February to 2 March 2009 blockade;

(3 contraventions in total)

(e)           Setka contravened s.43 of the BCII Act in respect of each of the following matters:

(i)            the RCH 12 December 2008 blockade; and

(ii)          the RCH 18 February to 2 March 2009 blockade;

(2 contraventions in total)

(f)           Spernovasilis contravened s.43 of the BCII Act in respect of each of the following matters:

(i)            the RCH 12 December 2008 blockade;

(ii)          the Victoria Harbour 12 and 13 February 2009 industrial action;

(iii)        the Robin 12 and 13 February 2009 industrial action; and

(iv)        the RCH 18 February to 2 March 2009 blockade;

(4 contraventions in total)

(g)          Reardon contravened s.43 of the BCII Act in respect of each of the following matters:

(i)            the RCH 12 December 2008 blockade;

(ii)          the Victoria Harbour 12 and 13 February 2009 industrial action;

(iii)        the Robin 12 and 13 February 2009 industrial action; and

(iv)        the RCH 18 February to 2 March 2009 blockade.

(4 contraventions in total)

M.                  Related Proceedings

200.               On 28 August 2008 Bovis commenced Federal Court proceeding No VID 681 of 2008 against the CFMEU and CEPU in respect of conduct in relation to the Blue Glue System at the RCH and the Victoria Harbour sites (the Bovis BGS proceeding).

201.               On 23 September 2008 Bovis discontinued the Bovis BGS proceeding pursuant to the Blue Glue resolution.On 12 November 2008 the Australian Building and Construction Commission commenced Federal Court proceedings against the CFMEU, Spernovasilis, Christopher, McLoughlin and Hudson in respect of conduct in relation to the Blue Glue System at the RCH and the Victoria Harbour sites. That proceeding was Wotherspoon v CFMEU VID 936 of 2008 (the Wotherspoon proceeding).

202.               The CFMEU admitted contraventions in the Wotherspoon proceeding. The Wotherspoon proceeding proceeded in the Federal Court by way of a Statement of Agreed Facts.

203.               On 3 March 2011 Justice Jessup imposed penalties on the CFMEU, Spernovasilis, Christopher, McLoughlin and Hudson totalling $66,000 for conduct at the RCH and Victoria Harbour Sites between 23 May 2008 and 28 August 2008.

204.               On 19 February 2009 Bovis initiated Federal Court proceeding number VID 114 of 2009 against the CFMEU alleging, inter alia, breaches of sections 38 and 43 of the BCII Act in respect of the RCH 18 February to 2 March 2009 blockade (the Bovis proceeding).

205.               On 19 February 2009 Bovis sought and obtained interlocutory orders against the First Respondent from Justice Marshall in relation to vehicular and other traffic access to the RCH Site (the 19 February 2009 order).

206.               From 23 February 2009 Bovis sought orders against the First Respondent for contempt of the 19 February 2009 order (the contempt proceeding).

207.               On 27 February 2009 Caelli initiated Supreme Court proceeding number 4956 of 2009 against the CFMEU officials in respect of the RCH 18 February to 2 March 2009 blockade (the Caelli proceeding).

208.               On 19 June 2009 the Federal Court declared that the First Respondent was guilty of contempt of the 19 February 2009 order.

209.               On 19 June 2009 the Federal Court imposed a fine of $75,000 for the contempt of the 19 February 2009 order.

210.               In 2009, Caelli and the CFMEU reached a settlement which included discontinuance of the Caelli proceeding.

211.               In or about March 2010, Bovis and the CFMEU reached a settlement which included discontinuance of the Bovis proceeding and payment by the CFMEU to Bovis of $50,000 (the settlement monies).

212.               The parties have, in reaching agreement in the overall quantum of the penalties, taken into account the above proceedings(including any fine, penalties and settlement monies) in assessing the appropriate penalty to be imposed on the Respondents for the contraventions of the BCII Act.

N.                    Appropriate penalties

213.               The parties submit that on the basis of the agreed facts and the Respondents’ admissions, it is appropriate for the Court to impose the penalties set out in the table at Annexure A.

214.               Each of the penalties in the table at Annexure A are within the permissible range for the applicable contravention.

215.               The parties submit that on the basis of the agreed facts and the Respondents’ admissions, it is appropriate for the Court to make the orders set out in the Minute of Proposed Orders by Consent in the Gregor proceedings (Annexure B) and the Cozadinos proceedings (Annexure C).

…………………………………………………… ........................................................

FREEHILLS SLATER & GORDON

Solicitors for the Applicant Solicitors for the Respondents

Dated: 25 May 2011 Dated: 25 May 2011

SCHEDULES OF RESPONDENTS

ANNEXURE 2 – PENALTIES FOR GREGOR v CFMEU & ORS (VID307/2010) &
COZADINOS v CHRISTOPHER & ORS (VID369/2010)