Office of the Australian Building and Construction Commissioner

ABCC Proceedings

• On 4 and 8 March 2010 the Federal Court ordered that the CFMEU and its official Bradley Upton and the AMWU and its officials John Windus and Andrew Holdsworth be joined as additional respondents.
• The ABCC’s Statement of Claim now names the following respondents:
• The CFMEU and Mr Upton,
• AMWU, Mr Windus and Mr Holdsworth; and
• 118 employees of CBI Constructors Pty Ltd (CBI).
• The proceedings concern industrial action by employees of CBI at the North West Shelf LNG Phase V Expansion Project in WA, who allegedly went on strike for eight days from 14 October 2008. The employees allegedly failed to comply with an Australian Industrial Relations Commission (AIRC) order that they return to work. On 28 October 2008, the Federal Court ordered that the employees not engage in further industrial action. The project was completed in February 2009.
• On 24 September 2009 the Court made orders that the ABCC cease to be an Intervener and become the second applicant in proceedings initiated by CBI: [2009] FCA1129.
• On 30 October 2009 the ABCC became the sole applicant when CBI withdrew from the proceedings.

Alleged contraventions

• The ABCC alleges that 118 employees, the CFMEU, the AMWU and their officials contravened:
• s.38 of the Building and Construction Industry Improvement Act (BCII Act) and s.494 of the Workplace Relations Act 1996 (WR Act) when they took industrial
• action between 14 and 24 October 2008;
• s.496(10) of the WR Act when they failed to comply with the AIRC order; and
• the relevant collective agreements, by failing to comply with the dispute resolution procedures in the agreements.

Penalties

• The maximum penalties for a contravention of the BCII Act are $22,000 for an individual and $110,000 for an organisation.
• The maximum penalties for a contravention of the WR Act are $6,600 for an individual and $33,000 for an organisation.

CBI proceedings

• On 22 October 2008 CBI issued proceedings in the Federal Court against employees to obtain an injunction to stop strike action and impose penalties. The ABCC intervened in these proceedings.
• On 28 October 2008 Gilmour J. ordered that the employees not engage in further strike action.
• On 13 November 2008 the Court granted CBI’s application to add additional employees as respondents and to extend the injunction until further order.

Background:

It is alleged that:

• In September 2006, Woodside Energy Limited (Woodside) engaged CBI Constructors Pty Ltd (CBI) to perform mechanical construction work at the North West Shelf LNG Phase V Expansion Project.
• CBI had two collective agreements in place. The AMWU was a party to one and the CFMEU and AWU were party to the other. The nominal expiry date of both agreements was August 2009.
• The contract between Woodside and CBI was varied on 23 November 2007 to include the construction of a sixth stabilizer unit (S6) and on 19 August 2008 to include the construction of a second vapour return line (VRL).
• Some employees out of a larger CBI workforce remained to work on the S6 and VRL packages when the other work was finished. The respondents in these proceedings are drawn from the employees that chose to remain.
• Prior to electing to remain the employees were informed that the additional work was a continuation of the Project and that their conditions of employment would be the same.
• The employees, through their union representatives, on 1 October 2008, demanded that CBI terminate their employment, pay out their consequential redundancy entitlements (taxed at concessional rates) and immediately re-employ them to continue to work on the S6 and VRL packages (“the claim”). They argued that the additional work did not form part of the Phase V Expansion Project.
• CBI refused the claim on the grounds that the additional work formed part of the Project, the claim would breach income tax laws and the employees would be no worse off by having their redundancy entitlements paid at the end of the Project.
• On 1 October 2008 AMWU organiser John Windus and CFMEU organiser Bradley Upton threatened that the employees would take industrial action if CBI did not meet the claim.
• On 13 October 2008 following a mass meeting, the claim was repeated to CBI representatives. Mr Upton allegedly said that if the claim was not met by the end of the day, the employees would refuse to attend for work for one week starting on 14 October 2008, return to work for one day and then refuse to work for another week.
• On 14 October 2008 employees engaged in industrial action by failing to attend for work without authorisation or agreement of CBI.
• The AIRC on 14 October 2008 issued orders pursuant to s.496 of the WR Act that:
•  CBI employees who were members of the AMWU or CFMEU and engaged to work on the S6 and VRL packages stop and not engage in industrial action; and
• the AMWU and CFMEU and Mr Upton, Robert Brown and Mark Johnson stop organising and engaging in and not organise or engage in industrial action, for one month from 4pm on that day.
• The AIRC orders were served on employees, the AMWU, the CFMEU and Mr Upton on 14 October 2008.
• Work resumed as normal on 15 and 16 October 2008.
• Between 17 and 24 October 2008 the employees engaged in industrial action by failing to attend for work on all or some of these days without authorisation or agreement of CBI. It is estimated that 12,720 man hours were lost.