The High Court has ruled that one of country’s largest unions must pay the maximum penalty made in original court proceedings brought against it by the Australian Building and Construction Commission.
The ABCC accused the CFMEU and Kevin Pattinson, an onsite worker and delegate, of misrepresenting the obligations of union membership to two onsite workers in 2018.
Under the Fair Work Act, a person is not obliged to join a union or disclose to anyone whether they are an union member or participating in industrial action.
The Act also prohibits discriminating against an employee on the basis of union membership.
The ABCC alleged that Pattinson—and in turn the CFMEU—had erroneously advised the two workers that they could not continue working onsite at a Multiplex site in Frankston, Victoria without union membership.
This was part of a “no ticket, no pay” or “no ticket, no start” policy the CFMEU was said to have espoused.
The initial judgment handed down fined both Pattinson and the CFMEU, with the union receiving the maximum possible fine of $63,000.
An appeal to the Federal Court was upheld with the judges deciding that a sense of proportionality was required in determining the size of the penalties given. They reduced the fines to $4500 and $40,000 for Pattinson and the CFMEU respectively.
This has now been dismissed after the ABCC appealed to the High Court with the Full Court determing that the consideration of proportionality applied only to criminal law and had no judicial or legal precedent or reference in civil law in such a case.
The court found that the Federal Court judges had made an error in allowing the first appeal.
It upheld the original decision to hand down the $63,000 fine, the maximum penalty reserved for the most serious conduct.
The union and the ABCC have a long history of conflict. The CFMEU has accused the ABCC of not doing enough to hold developers and companies accountable for breaching workers’ rights and wage thefts.
More recently, the CFMEU and Lendlease lost a Federal Court battle over flying or using the Eureka flag or any similar logo on worksites.
