Case Reports

Coercive tactics constitute "wilful disregard" for building industry law

In Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040 (16 September 2009), Justice Kenny imposed penalties totalling $85,500 for three contraventions of s 43 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) by the CFMEU ($75,500) and an individual ($10,000).  The contraventions were separate and distinct (as opposed to arising out of one course of coercive conduct).  In handing down the decision, Her Honour Justice Kenny noted:

“[the individual] unilaterally and arbitrarily prevented work continuing at the site as planned that day. Plainly enough, Mr Mates’ action was unlawful. There was no explanation for it. I infer that it was done in wilful disregard of the Building and Construction Industry Improvement Act.” [at 20]

“. . .the Union, through its representatives at various levels around the country, has a history of engaging in coercive conduct relevantly similar to the kind in question in this case." [at 69]

“The need for specific deterrence is underscored by the Union's history of similar conduct and its continuing involvement in the building and construction industry” [at 93]

“Penalties must also be sufficiently high to deter repetition by the contravener and others who might be tempted to engage in contravening conduct. Deterrence is a primary objective of penalties” [at 76]

Previously:

• On 10 March 2009, Justice Kenny granted interlocutory injunctions to the Applicant.
• On 5 February 2009, Justice Kenny handed down her decision and found that the individual and the CFMEU contravened the coercion provisions of s 43 of the BCII Act on three seperate occasions at a building site in Heidelberg, Victoria.
• On 4 August 2008 Justice Kenny ruled that industrial organisations such as the CFMEU are capable of contravening s 38 of the BCII Act.