CFMEU Must Deliver Confidential Evidence to Boral

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Thursday, July 23rd, 2015
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CFMEU has been ordered to deliver evidentiary material provided by ACCC to Boral as part of the building company’s lawsuit over an alleged black ban.

Construction giant Boral could be allowed to access confidential information obtained by the ACCC using its compulsory powers of examination following a landmark judicial decision

Boral sought access to the confidential information in order to support its lawsuit against the CFMEU, over allegations that the union has launched a Melbourne-wide boycott on the building company’s concrete products.

The specific documents that the company intends to obtain are interviews related to allegations that the construction branch of CFMEU in Victoria is conducting a secondary boycott against the company’s products on building sites throughout Melbourne in contravention of the law.

Boral is pursuing CFMEU $23 million in damages plus costs for the ban, with the hearing scheduled for August.

The ACCC, which gathered the information from witnesses under threat of criminal sanction, opposed Boral’s efforts to obtain the information on the grounds that it the unprecedented move could compromise the integrity of the body’s compulsory examinations.

In making his decision Justice Kevin Bell said that it would be “unjust to deprive Boral” of the information it’s pursuing as part of its civil case against CFMEU, despite the essential legitimacy of the ACCC’s objections.

While the decision grants Boral access to information produced by ACCC, it will actually be CFMEU – the counterparty to its lawsuit, who will be required to deliver the evidence, given that ACCC provided all of its evidentiary documents to the union for the preparation of its defence case.

CFMEU must now provide Boral with the evidence produced by ACCC’s examinations, including interviews with as many as a dozen employees of different contractors who have refused to accept Boral deliveries, as well as interviews with “any person” involved with “communication of the ‘black ban’ against Boral.”

While ACCC could still appeal the decision – particularly given that it acknowledges the reasonable nature of its refusal, the regulator may forgo this option given the limited natural of the financial resources at its disposal.

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