CFMMEU penalty for threats and unlawful picketing reduced

12 April 2023

This media release was amended to correctly add into the final penalty figures a $175,000 penalty against the CFMMEU and $30,000 penalty against Mr Greenfield which were ordered by Justice Rares in 2021 and which were not impacted by the outcome of the appeal to the Full Federal Court.

20 March 2023

The Full Federal Court has reduced penalties against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), three of its NSW officials and one of its delegates for coercive conduct, an unlawful picket and applying undue pressure to a Sydney crane company.

In 2019, the Australian Building and Construction Commissioner (ABCC) commenced legal action against the CFMMEU, NSW Divisional Branch President Rita Mallia, NSW Divisional Branch Assistant Secretaries Robert Kera and Michael Greenfield, and union delegate Howard Byrnes.

The respondents subsequently admitted to breaches relating to unlawful picketing, coercion (which included threats) and applying undue pressure to the company trading as Botany Cranes to sign up to a CFMMEU enterprise agreement and reinstate the employment of Mr Byrnes.

The conduct included an unlawful picket involving about 50 people outside Botany Cranes’ premises, in Botany, on 25 January 2019.

In 2021, Federal Court Justice Steven Rares imposed a total of $1,022,500 in penalties, including an $850,000 penalty against the CFMMEU, $20,000 against Ms Mallia, $47,500 against Mr Kera, $100,000 against Mr Greenfield, and $5,000 against Mr Byrnes.

Following an appeal by the CFMMEU and the individuals, the Full Federal Court, made up of Justices Darryl Rangiah, Mark Moshinsky and Robert Bromwich, have reduced the total penalties to $641,500, including $515,000 against the CFMMEU, $15,000 against Ms Mallia, $35,000 against Mr Kera, $73,000 against Mr Greenfield, and $3,500 against Mr Byrnes.

The Court has also removed a personal payment order against Mr Byrnes. Personal payments orders against the three officials remain.

In the appeal decision, the Full Federal Court found that Justice Rares had misapplied the now repealed Building and Construction Industry (Improving Productivity) Act 2016 provisions in some aspects of the 2021 judgment, including in assessing the number of breaches of that Act.

The Full Federal Court also ordered that all penalties be paid to the Commonwealth, revoking Justice Rares’s orders for some of the penalties to be paid as compensation to third parties.

Under federal legislation, responsibility for the case transferred from the ABCC to the Fair Work Ombudsman in December 2022, after the hearing of the appeal.

For more information about abolition of the ABCC and transfer of matters to the FWO, see: Abolition of the ABCC and ROC - Fair Work Ombudsman.

Employers and employees can visit or call the Fair Work Infoline on 13 13 94 for free advice and assistance about their rights and obligations in the workplace. An interpreter service is available on 13 14 50.

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