ABCC v McDonald and CFMEU

WA , Backgrounder

Release date: 5 July 2011

Background

Allegations as outlined in the ABCC’s Application and supporting material filed on 5 July 2011. The allegations may change during the course of the proceeding.

1. On 5 July 2011 the ABCC filed an application for an interlocutory injunction against CFMEU WA Assistant Secretary Joe McDonald and his union after they contravened the Building and Construction Industry Improvement Act 2005 (BCII Act) at the Queens Riverside Apartment construction site in Perth.

2. Mr McDonald and the CFMEU took or threatened to take unlawful industrial action and made false or misleading statements with the intent to coerce head contractor at the site, Diploma Constructions Pty Ltd, to make an enterprise agreement with the CFMEU.

3. On 2 February 2011 and 10 June 2011 Mr McDonald organised unlawful industrial action at the Diploma site and made false or misleading statements out the front of the site that workers at the site were not getting paid by Diploma and its subcontractors.

4. On 10 June 2011, McDonald conducted an interview on radio station 6PR where he falsely or misleadingly alleged Diploma was not paying its sub-contractors working at the site and that in some cases sub-contractors had not been paid for four months. Mr McDonald also falsely alleged cheques issued by Diploma and/or its sub-contractors had recently bounced and Diploma owed moneys in the vicinity of $250,000.00 to $1 million in connection to work at the site.

5. On 27 June 2011 Mr McDonald met with a Diploma manager at a nearby café. Mr McDonald stated to the manager that unless Diploma agreed to make a building enterprise agreement with the CFMEU within one week the union would continue to run a media campaign against Diploma to ensure Diploma received negative coverage and the project developer would not retain Diploma. Mr McDonald further threatened that he would come onto the site on 4 July 2011 and organise a picket.

Alleged contraventions and claim for interlocutory relief

6. The ABCC is also seeking the imposition of penalties for contraventions of the unlawful industrial action and unlawful coercion provisions of the BCII Act.

7. The ABCC alleges Mr McDonald and the CFMEU contravened:

Section 38 of the BCII Act by organising unlawful industrial action that occurred on 2 February and 10 June 2011; and
Section 44 of the BCII Act by taking action with the intent to coerce Diploma Constructions to agree to make an enterprise agreement.

8. The ABCC also seeks interlocutory relief until the determination of this proceeding.

The ABCC requests the Court make orders restraining each of the Respondents (whether by their officers, employees, agents or howsoever otherwise) from:

preventing, hindering or interfering with access to or egress from the Site of persons or vehicles seeking such access or egress;
organising, maintaining, encouraging and/or participating in a picket at the entrance or exits to the Site or within 100 metres of such entrance or exits;
attending, organising, encouraging, directing or procuring any person or persons, to attend, within 100 metres of any entrance or exit to the Site, save for such entry to the Site as may be authorised by law pursuant to the provisions of Part 3-4 of the Fair Work Act 2009, or for the purpose of using a public road for reasons unconnected with the Site;
issuing any media release or making any statement to the media or conducting any media interview concerning Diploma’s conduct of its business at the Site;
encouraging, persuading, directing or procuring any person (including any employee, sub-contractor or contractor) who performs work at the Site to:

i. fail or refuse to attend for work at the Site;
ii. refuse to perform any work after attending the Site;
iii. leave the Site when required to perform work at the Site; and/or
iv. perform work at the Site in a manner different from the way in which the person customarily performs work at the Site.

Save and except where such conduct is authorised and agreed to in advance and in writing by the employer and contractor of any workers, or such conduct is based on a reasonable concern held by workers about an imminent risk to their health or safety and the workers did not unreasonably fail to comply with a direction of their employer or contractor to perform other available work, whether at the same or another workplace, that was safe to perform.

9. Further, the ABCC seeks orders until the hearing and determination of this proceeding restraining Mr McDonald from entering any construction site in Western Australia where Diploma is the head building contractor.