ABCC v CFMEU, CFMEUW and McDonald

WA , Backgrounder

Release date: 15 July 2011

Background

Allegations outlined in the ABCC’s statement of claim.

1. Arccon WA Pty Ltd was the head contractor at the Sunday Times building site at 64 Stirling Street, Perth.

2. Arccon engaged Kwik Transport and Crane Hire to provide crane services on the site, who in turn engaged Terry’s Crane Hire Pty Ltd to provide crane services.

3. At approximately 11.15 am on 27 February 2010 a Terry’s Crane Hire employee left the depot and drove a 16 tonne mobile crane to the site, commencing work at approximately 11.45 am.

4. At approximately 12.30pm, CFMEU official Walter Molina approached the employee, asking him if he was a member of the union.

5. After the employee replied that he was not, Mr Molina walked to the front of the crane and made a mobile telephone call.

6. Following that call, CFMEU Assistant Secretary Joe McDonald arrived on the site at approximately 12.45 pm, with four CFMEU organisers.

7. Mr McDonald and the organisers met with the Arccon site manager, saying that the CFMEU would not allow Terry’s Crane Hire to remain on the site.

8. Mr McDonald then approached the Terry’s Crane Hire employee, and had a conversation to the following effect:

Mr McDonald: “Are you in the union?”

Employee: “No.”

Mr McDonald: “Why not?”

Employee: “Because I don’t want to be.”

Mr McDonald: “Well Mr ‘I don’t want to be’, sling your hook and f*** off.”

Employee: “What?”

Mr McDonald: “Pack your hook away and f*** off and tell Terry Joe says hi.”

9. Mr McDonald then proceeded to a stop work meeting at the site.

10. The employee rang the managing director of Terry’s Crane Hire, and relayed the conversation that had taken place.

11. A decision was made during that call to make a ‘strategic withdrawal’. The employee left the site at 1.15 pm, before the scheduled work was completed.

Alleged contraventions

12. The ABCC alleges that the Respondents contravened:

Section 346(a) of the Fair Work Act (2009) (FW Act) by taking adverse action against the employee because he was not a member of the union;
Section 346(b) of the FW Act by taking adverse action against the employee because he engaged in industrial activity by choosing not to become a member of the union; and
Section 349(1)(a) of the FW Act, by knowing or recklessly making a false or misleading representation about the employee’s obligation to join the union or disclose his status.