The penalty judgment follows the ABCC commencing proceedings against Devine Constructions in August 2015. The judgment requires half the penalties, $19,000, to be paid to the steel fabrication company – Craig’s Engineering.

At the time of the contraventions Devine Constructions was the head contractor for the Double One 3 Apartments project at 113 Commercial Road, Teneriffe. In July 2013, a project manager sent an email to all employees of Devine Constructions with an instruction to not engage contractors unless they had an agreement with the CFMEU.

In October 2013, Craig’s Engineering submitted a tender for the structural steel works. The Court heard evidence that Devine Constructions’ contracts administrator Andrew Blore advised the tenderer “We would like you to do the job but you don’t have an EBA Agreement.”

In December 2013, Steel Construct was invited to tender for the project and was told they “would be an easier option for us” if they had an EBA with the CFMEU.

Steel Construct submitted a revised quotation that included additional costs “with regards to the EBA with CFMEU”. Steel Construct advised Devine that they would use Mulherin Rigging as site installers and that Mulherin Rigging held an EBA (with the CFMEU).

Devine awarded the structural steel works to Steel Construct. Craig’s Engineering were unsuccessful and were told they needed a signed EBA to work on the site.

The ABCC produced further evidence to Court of an email from the successful tenderer to Devine saying “Are unions still attending regularly?’ and stating “My guys could install quicker than Mulherin for a lot less.”

Decision

The Court found Devine Constructions, its general manager Michael Tucker and contracts administrator Andrew Blore contravened the Fair Work Act when the company refused to engage Craig’s Engineering’s because it did not have an enterprise agreement with the CFMEU.

Devine Constructions was penalised $32,000, Mr Tucker $3,000 and Mr Blore $3,000 for taking adverse action against Craig’s Engineering. All three were also found to have discriminated against the subcontractor.

The judgment was one of three Federal Court decision in one week highlighting a string of CFMMEU law-breaking behaviour, with Court noting the Forest Meiers decision, and bears a striking similarity to the facts.

“In attempting to appease the CFMEU, Devine Constructions has done the wrong thing and is now paying the price through today’s penalty judgement,” ABCC Commissioner Stephen McBurney said.

“It is significant that the Court has ordered half the penalties be paid to the victim. This is an important measure to address discrimination and hold those who break the law to account for their unlawful conduct.”

The ABCC remains in place to ensure building and construction industry participants’ compliance with Australia’s workplace laws.

As a consistent supporter of the ABCC since it was first recommended by the Cole Royal Commission in 2003, AREEA recently provided input into a review of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act), reiterating industry’s support for the regulator’s retention.

Further, AREEA continues to support the passage of the “Ensuring Integrity Bill”, which contains various measures seeking to lift the standards, behaviours and transparency of all registered organisations including trade unions and registered employer groups.

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