17 January 2023

The Federal Court has increased a penalty against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for unlawful picketing of a Canberra building site in 2018.

The Australian Building and Construction Commission (ABCC) commenced the court action against the CFMMEU and several of its officials in 2019. 

The CFMMEU and its then Secretary of the ACT Branch of its Construction and General Division (ACT Branch) Jason O’Mara, then ACT Branch Assistant Secretary Zachary Smith, and organiser Joshua Bolitho, made admissions in relation to an unlawful picketing that delayed the commencement of work at the 12-storey commercial building project at Constitution Place in central Canberra for two hours on 14 May 2018.

Federal Court Justice Anna Katzmann made penalty orders against the CFMMEU and the three officials in July 2020. Following a later appeal by the ABCC against the $126,000 penalty against the CFMMEU, Justice Katzmann has now ordered that penalty be increased to $180,000.

The unlawful picket on 14 May 2018 involved, among other actions, cars being parked in front of the main entrance to the building site. The three officials, together with a group of other people, linked arms at the main entrance blocking pedestrian and vehicle access through the main entrance gate.

Site management requested the cars, which were registered to the CFMMEU, be removed but were told by the CFMMEU officials they could not find their keys. Locks and chains were also placed on entrance gates preventing access to the site. A bus carrying a group of workers was unable to access the site.

Police were called, and project management used bolt cutters to gain access through the gates.

Justice Katzmann said “the Union’s lack of contrition and failure to take corrective action, despite the imposition of numerous penalties for contraventions of a similar kind, underscores the compelling need to fix a penalty large enough to operate as an effective deterrent”.

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

Acting Fair Work Ombudsman Mark Scully said all participants in the building and construction sector were expected to follow the law.

“Consistent with other industries, in commercial building and construction the Fair Work Ombudsman will investigate reports of non-compliance and hold to account those who are acting outside the law,” Mr Scully said.

The three union officials have paid the penalties ordered against them in July 2020, which were a combined $33,600.

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

Employers and employees can visit www.fairwork.gov.au 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.