Background
Allegations as outlined in the ABCC’s statement of claim filed on 16 August 2010. The allegations may change during the course of the proceeding.
- Probuild Constructions (Aust) Pty Ltd was the principal contractor responsible for the construction of a high rise commercial building project at 140 William St, Perth (the Project).
Concrete Pour Ban: 15 and 16 January 2009
- On 16 January 2009 weather bureau authorities predicted temperatures in Perth would exceed 40 degrees Celsius. The work schedule on the Probuild project required a concrete pour to occur on 16 January 2009.
- Management and representatives of Crown Construction Services Pty Ltd, the subcontractor engaged to undertake the concrete pour, prepared a procedure for carrying out the concrete pour to take account of the forecast weather.
- The procedure involved starting work earlier than usual, ensuring workers had ready access to water, use of personal protective hot weather equipment, limiting the extent of work in direct sunlight and stopping work if the temperature reached 37.5C. The procedure was developed in consultation with and approved by OHS representatives and the employees who would be involved in the concrete pour.
- On 15 January 2009 Assistant Secretary of the CFMEU Joe McDonald entered the site and spoke to a group of Crown Construction employees. The employees informed Mr McDonald of the planned concrete pour and told him they regarded the procedure to be acceptable and were prepared to carry out the concrete pour.
- Mr McDonald held a meeting of employees in the crib room at the site that was attended by 130 employees.
- Mr McDonald told those attending the meeting they were not to carry out the scheduled concrete pour, ‘f..k this, you are not pouring concrete tomorrow…we are not going to start pouring concrete in summer at 6.00am, otherwise we’ll be starting then all the time’.
- Mr McDonald asked for a motion to be moved that a concrete pour, scheduled to occur the next day, would not take place. The motion was adopted by a show of hands. Immediately after the motion was adopted Mr McDonald told Crown Construction and Probuild employees that they were not to carry out the concrete pour.
- The concrete pour did not go ahead and work on the project was delayed as Probuild rescheduled the pour for a subsequent day.
Work Ban: 2 February 2009
10. Probuild obtained a road closure permit and scheduled a special night-shift on 2 February 2009 to erect a gantry over the Wellington Street heritage building façade.
11. Riggers and traffic controllers were subcontracted to undertake the work.
12. At 8.00pm Mr McDonald entered the office and informed the Probuild management that the riggers could not work that evening because their employer did not have a current enterprise bargaining agreement.
13. Mr McDonald told the traffic controllers he was shutting down the site because of the EBA issue.
14. Mr McDonald contacted the State Manager for Probuild and told him the employees on the Project were not prepared to work because of the EBA issue. He then contacted a management representative of the rigging subcontractor, saying no work would be done by the company on the project unless it signed an EBA. Mr McDonald told the manager he should be ‘making his way’ to the project to sign an EBA.
15. The manager of the rigging company arrived at the site and held discussions with Mr McDonald and fellow Assistant Secretary of the CFMEU, Graham Pallot.
16. During a break in these discussions Mr McDonald told employees waiting at the site for work to commence that the EBA issue would not be resolved that evening and they should go home.
17. At approximately 11.15pm Probuild determined that it was not appropriate to proceed with the erection of the gantry that night due to the working time lost.
Work stoppage: 24 June 2009
18. On 24 June 2009 the Project was subject to intermittent rain and high wind. At 9.00am Probuild suspended a concrete pour on level 11 of the multi-story Project and directed all employees on the site to perform work in covered areas below level 8.
19. At 10.00am Mr McDonald entered the site and held a meeting with workers. Shortly after the meeting, construction employees left the site without resuming work and Mr McDonald told Probuild the employees had taken a vote and ‘decided to go home’.
Amenities strike: 20 August 2009
20. Before 8.30am on 20 August 2009 certain toilet amenities on the ground floor of the project ceased functioning properly due to a PVC pipe breakage and the area adjacent was subject to some leakage from the broken pipe.
21. Before 9.00am Probuild commenced repairing the broken pipe and cleaning and disinfecting the toilet amenities.
At 10.00am the repairs were completed and the toilet amenities were again available for use. At all times there were adequate toilet facilities available elsewhere on the Project.
22. Mr McDonald entered the site while the repair was being carried out.
23. At 10am Mr McDonald held a meeting with employees and told them they should not resume work until 24 August 2009. The majority of employees present indicated they were in favour of the work-stoppage. That meeting lasted less than ten minutes.
24. On 21 August 2009 the majority of employees failed to attend for rostered duties. Mr McDonald entered the site and told those performing work to cease, saying they should not be there. Mr McDonald told a delivery truck driver there would be ‘no more deliveries today’.
Alleged Contraventions
25. The ABCC alleges the CFMEU and Mr McDonald contravened s.38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) by engaging in unlawful industrial action at the Project on:
i. 16 January 2009;
ii. 2 February 2009;
iii. 24 June 2009; and
iv. 20 and 21 August 2009.
26. The ABCC alleges the CFMEU and Mr McDonald contravened s.44 of the BCII Act by attempting to unlawfully coerce a subcontractor to make a building agreement on 2 February 2009.
ABCC Prosecution
27. The ABCC filed a statement of claim in the Federal Court at Perth on 16 August 2010.
28. A directions hearing will be listed on a date to be fixed, no earlier than 30 September 2010
Penalties
29. The maximum penalties for a contravention of the BCII Act are $22,000 for an individual and $110,000 for an organisation.