Case: Re Election for Office in the Construction, Forestry, Mining and Energy Union; Ex parte Sutton [2002] FCA 971 ; (2002) 115 IR 345
Outcome: cited
A number of findings involving unlawful behaviour by officials related to the CFMEU have been made in recent years, in addition to the other case involving Lane (eg Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No 2) [1999] FCA 1714 , (1999) 94 1R 231; Construction, Forestry, Mining &amp; Energy Union v Hamberger [2003] FCAFC 38 ; (2003) 127 FCR 309 ; Alfred v Walter Construction Group Ltd [2005] FCA 497 ; Martino v Construction, Forestry, Mining and Energy Union, Magistrates Court of Victoria (Industrial Division), 10 May 2006; Alfred v Construction, Forestry, Mining and Energy Union , District Court of New South Wales, 3 March 2004; Hadgkiss v Blevin [2004] FCA 697 ; [2004] FCA 917 ; Hadgkiss v Construction, Forestry, Mining and Energy Union [2007] FCA 524 ; (2007) 162 IR 385; Ponzio v B &amp; P Caelli Constructions Pty Ltd [2007] FCAFC 65 ; (2007) 158 FCR 543 ; Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 ; (2007) ATPR 42-140 ; Cruse v Multiplex Ltd [2007] FCA 2015 ; Cruse v Construction, Forestry, Mining and Energy Union [2007] FMCA 1873 ; and Alfred v Lanscar [2007] FCA 1001 ; (2007) 167 IR 320). Counsel for the CFMEU submits that only building industry cases are relevant, and then only those that involve the relevant divisional branch (the New South Wales Construction and General Divisional Branch), bearing in mind that the Union is an amalgamated federation ( Re Election for Office in the Construction, Forestry, Mining and Energy Union; Ex parte Sutton [2002] FCA 971 ; (2002) 115 IR 345 at [23] ). I agree that the classes of case identified are the most relevant, but I do not agree that the other cases are irrelevant. Ultimately, union officials will act in accordance with the policies of the union. An official of one geographic or industry branch will observe the manner in which policies are applied by the federal body in relation to other branches. These various cases illustrate that the federal body has not been effective in ensuring that officials act in accordance with the law. I note that there is no evidence of offending officials (including Lane) suffering any serious disciplinary penalties. 14 In my opinion, notwithstanding the purely vicarious nature of the liability of the CFMEU, the penalty in this case, when compared with the maximum penalty, should adequately reflect the systematic nature of the failure of the CFMEU to deter or prevent actions of the kind involved in this case and act as a spur towards effective action by the CFMEU and the State entities connected with it. A penalty of $5,500 will be imposed. 15 Declarations as to contravention will be made. The respondents should pay the first applicant damages in the sum of $23,000 plus interest from 22 October 2003 to the date of judgment. The respondent Lane is to pay a penalty of $1,800. The respondent CFMEU is to pay a penalty of $5,500. The applicants should bring in revised draft minutes of order to give effect to these reasons. Costs can be considered. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 11 April 2008 Counsel for the Applicants: Mr RM Goot AM SC, Mr MJ Heath Solicitor for the Applicants: Minter Ellison Lawyers Counsel for the Respondents: Mr JH Pearce Solicitor for the Respondents: Taylor &amp; Scott Date of Hearing: 15 August 2007 Date of Judgment: 11 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/466.html