ABCC v Jarvis, Temoho and CFMEU
Background
Allegations as outlined in the ABCC’s statement of claim filed on 29 October 2010. The allegations may change during the course of the proceeding.
1. The ABCC alleges the CFMEU and organisers Tim Jarvis and Andrew Temoho contravened the Fair Work Act 2009 (FW Act) and the Building and Construction Industry Improvement Act 2005 (BCII Act) by engaging in unlawful industrial action and acting in an improper manner while seeking to exercise rights as permit holders.
2. Bovis Lend Lease Pty Ltd (BLL) was the managing contractor for a construction project at the Gold Coast University Hospital in Southport, Queensland.
3. BLL engaged Heinrich Constructions Pty Ltd to install and erect formwork on the project.
4. On 26 November 2009 CFMEU organisers Tim Jarvis and Andrew Temoho entered the project site without giving notice of the entry under s.487 of the FW Act.
5. Mr Jarvis and Mr Temoho spoke to employees of BLL and Heinrich while they were working. The organisers then called a mass meeting of these employees outside the lunch rooms.
6. Before the meeting BLL’s senior construction manager asked Mr Jarvis to leave the site as he did not have a right of entry in place. Mr Jarvis responded that he would not leave unless he was physically removed or requested to leave by police.
7. The manager told Mr Jarvis to leave the site as he did not have correct personal protective equipment.
8. Mr Jarvis and Mr Temoho proceeded to hold a mass meeting. They told workers present that BLL had withheld entitlements from employees of another subcontractor engaged on projects in New South Wales and Queensland.
9. The workers voted to stop-work until 30 November 2009 in protest.
10. After the vote BLL’s senior construction manager met with BLL employees and project delegates for the CFMEU Michael Swanson and Ian McKewin, and three CFMEU organisers.
11. Mr Swanson and Mr McKewin told the BLL manager that BLL employees, themselves included, were leaving the site and would not return to work until 30 November 2009.
12. Employees of Heinrich, BLL and some members of the CFMEU left the site and failed to perform rostered duties until 30 November 2010.
Alleged Contraventions
13. The ABCC alleges Mr Jarvis and Mr Temoho contravened:
· s.38 of the BCII Act and s.417 of the FW Act by their involvement in the alleged unlawful industrial action; and
· s.500 of the FW Act by allegedly acting in an improper manner while seeking to exercise rights as a permit holder:
i. failing to give the required notice of their entry to the site occupier;
ii. holding discussions with employees outside of rostered breaks;
iii. failing to comply with OHS requirements, namely to wear personal protective equipment as requested by the site occupier; and
iv. intentionally hindering and obstructing persons at the premises.
- The ABCC alleges the CFMEU by the actions of Mr Jarvis and Mr Temoho contravened s38 of the BCII Act and sections 417 and 500 of the FW Act.
ABCC Prosecution
14. The ABCC filed a statement of claim in the Federal Magistrates Court in Brisbane on 29 October 2010.
15. A first directions hearing was held on 4 February 2011.
Penalties
16. The maximum penalties for a contravention of the BCII Act are $22,000 for an individual and $110,000 for an organisation.
17. The maximum penalties for a contravention of the FW Act are $6600 for an individual and $33,000 for an organisation.