The ABCC has recently announced that it has commenced the first case alleging contraventions of the unlawful picketing provisions under section 47 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act).

The ABCC alleges that on 8 May 2017, CFMMEU representatives John Perkovic, Kane Pearson and Mario Raspudic blocked access to two Melbourne sites, preventing office staff, subcontractors and workers from entering or leaving the site.

The CFMMEU’s alleged action appears to have been motivated at least in part by the fact that it was a scheduled RDO under the CFMEU Pattern EBA 2016-2018. It is worth noting that even if the CFMEU Pattern EBA 2016-2018 had actually applied to all of the affected individuals, it does not provide a right for the CFMMEU to prevent work from occurring on a scheduled RDO.

Master Builders believes this is an important test case for the industry, as the unlawful picketing provisions of the BCIIP Act (which contain the same reverse onus of proof as applies to general protections claims under the Fair Work Act 2009) closed an important legislative loop-hole that had hitherto been exploited by building unions such as the CFMMEU.

The maximum penalty for a breach of the BCIIP Act is $210,000 for bodies corporate and $42,000 for individuals.