The Federal Court has imposed penalties totalling $100 000 against the State and Federal branches of the Construction, Forestry, Mining and Energy Union (the CMFEUW and the CMFEU respectively) for engaging in secondary boycott* conduct in breach of the Trade Practices Act 1974.
The conduct occurred at the Holiday Inn construction site at the Burswood Casino complex, Perth, Western Australia.
The Australian Competition and Consumer Commission alleged that in two instances on 16 April 2004 and one instance on 4 November 2004, the CFMEU and the CFMEUW, by the conduct of their officials, Mr Joseph McDonald, Mr Michael Buchan and Mr Michael Powell, engaged in conduct that contravened section 45D of the Act.
The conduct involved the union officials hindering or preventing third parties from supplying concrete, sand and related services to Doric Constructions Pty Ltd, and was engaged in for the purpose—and was likely to have the effect—of causing substantial loss or damage to the business of Doric Constructions Pty Ltd.
On 16 April 2004, Doric Constructions Pty Ltd had scheduled a concrete pour for the central lift support well of the Holiday Inn. The required concrete was to be delivered by a number of concrete trucks into a concrete pumping machine adjacent to the pour area. Mr McDonald and Mr Buchan prevented the supply of concrete on the site by standing between a concrete truck and the concrete pumping equipment. Despite several requests that they move away, Mr McDonald and Mr Buchan refused and were subsequently escorted from the site by police. Mr McDonald, Mr Buchan and a number of others then formed a line across the entrance to the site, creating a human barrier that prevented four concrete trucks from entering the site.
In the 4 November incident, Mr McDonald, Mr Powell and other persons congregated at the entrance to the site. As a truck approached the site entrance with a scheduled sand delivery, a number of people linked arms to form a human barrier across the entrance. The barrier remained in place and the truck was unable to enter the site and supply its sand to Doric Constructions. Eventually, a crane was used to lift the sand bins over the boundary fence and onto the site.
The CFMEU, CFMEUW and the three union officials involved admitted that their conduct contravened section 45D of the Act.
The court made orders, with the consent of the parties, including:
- orders that the CFMEU and CFMEUW each pay a penalty of $50 000
- declarations that the conduct of the CFMEU, CFMEUW and the three union officials contravened section 45D of the Act
- an order directing the CFMEU and CFMEUW to implement a trade practices law compliance program
- orders requiring the CFMEU and CFMEUW to publish a notice to members detailing the substance of the court orders, and
- an order that the respondents pay a fixed amount for the ACCC's costs of the proceedings.
"The ACCC welcomes the decision by Justice Nicholson and is pleased to see that the broad range of remedial orders sought by the ACCC has been endorsed by the court", ACCC Chairman, Mr Graeme Samuel, said today.
"The case shows that all participants in the economy, including unions, are subject to the provisions of the Trade Practices Act and that anyone engaging in secondary boycott activity, including unions, risks substantial penalties being imposed against them.
"The ACCC is also pleased to see that the court has handed down orders requiring the unions to implement a trade practices law compliance program as well as issue disclosure notices as these orders will ensure that the unions and their members better appreciate the effect and scope of the Act and will reduce the risk of future contraventions".