A Roundup of Recent Construction Cases

The following is a brief roundup of cases relevant to the construction industry. These cases primarily involve labour laws and the behaviour of both employers and unions. In their judgments, the courts found that there was a consistent pattern of offending by certain groups.

Australian Building and Construction Commissioner v James Fissenden & Anor [2020] FCA 945 (aka the Sunshine Plaza Shopping Centre case)

The Australian Building and Construction Commissioner (ABCC) alleged that the Construction Forestry Maritime Mining and Energy Union (CFMMEU) and its delegate James Fissenden coerced a worker to join the union. The ABCC alleged that Mr Fissenden subjected the worker to abusive verbal behaviour until he agreed to join the union. The worker was employed by a shopfitting company working at the Sunshine Plaza Shopping Centre site in the Sunshine Coast. It was alleged that the company was prevented from continuing work until the worker joined the union.

On 9 July 2020, the Federal Court found in favour of the ABCC, finding that the CFMMEU and Mr Fissenden contravened the coercion and adverse action provisions of the Fair Work Act 2009. The CFMMEU was fined $40,000 and Mr Fissenden was fined $4,000. The CFMMEU was also ordered to return the union membership fee of $625.20.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors VID881/2017 (aka the Melbourne University College Project case)

The ABCC alleged that two representatives of the CFMMEU coerced two workers of a subcontractor to join the union and coerced the subcontractor to pay ‘union rates’. The representatives threatened the subcontractor and the workers that they would be required to leave the Melbourne University’s college site in Parkville, where the construction was taking place.

On 5 June 2020, the Federal Court found in favour of the ABCC and penalised the CFMMEU $110,000, and the two representatives were penalised a total of $13,500.

Australian Building and Construction Commissioner v SWAT Building Systems Pty Ltd & Anor VID108/2019

The ABCC brought a case against SWAT Building Systems, alleging that its director, Ilias Lymberatos dismissed a labourer who complained that he was not getting paid. When the employee confronted Mr Lymberatos over five weeks pay and other minimum entitlements, he was told he was being ‘disrespectful’ and ‘not loyal’.

On 29 May the Federal Circuit Court penalised Mr Lymberatos a total of $54,000.

Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) & Ors

The ABCC brought a case against the AMWU and one of its officials. The case involved Newcold’s Melbourne cold storage distribution construction site. ABCC alleged that the AMWU official, Zeljko Cimbora, threatened Newcold that the union would block workers’ access the site if the workers were not replaced with AMWU members.

On 27 March, The Federal Court penalised the AMWU $100,000 and Mr Cimbora $12,000, in addition to litigation costs.