Office of the Australian Building and Construction Commissioner

Background

Allegations as outlined in the ABCC’s statement of claim filed on 4 March 2011. The allegations may change during the course of the proceeding.

1.     Cavill Properties Pty Ltd was a constitutional corporation undertaking a building project at 6 ‘The Crescent’, Dee Why NSW (Dee Why site) and 1262 Pitwatter Road, Narrabeen (Narrabeen site).

2.     The ABCC alleges that on 17 June 2010, CFMEU officials Thomas Mitchell and Tony Papaconstuntinos contravened various sections of the Fair Work Act (2009) (FW Act) while seeking to exercise their rights under that Act.

3.     The ABCC alleges that Mr Mitchell committed a further contravention of the FW Act on 22 June 2010.

Dee Why site – Verbal Abuse

4.     On 17 June 2010 at the Dee Why site, Mr Mitchell verbally abused two Cavill managers while undertaking a safety inspection.

5.     This abuse included loud and extensive use of expletives, intimidation, and an invasion of their personal space.

6.     The abuse was associated with a purported direction from Mr Mitchell for the management employees to refrain from executing a direction from their employer, despite that direction being lawful.

Dee Why site- Assault

7.     While at the Dee Why site Mr Mitchell closed the door on a Cavill manager, making contact with the employee’s head and causing physical injury.

8.     This conduct was deliberate.

9.     Furthermore, Mr Mitchell grabbed the right arm of another management employee, pulling it forcefully.

Dee Why site – OHS requirements

10.  During a site safety induction, Mr Mitchell was instructed not to enter the area near the eastern boundary, as excavation work being undertaken in the area made the area unsafe.

11.  Despite the requests, and further requests of the same nature, Mr Mitchell proceeded to move through the excavation area.

Narrabeen site – OHS requirements

12. On 22 June 2010 Mr Mitchell undertook a site induction at the Narrabeen site.  During that induction Mr Mitchell was requested not to enter the area around the driveway and deep excavation area as they were unsafe, and to wear a hard hat at all times when outside.

13.  Mr Mitchell ignored these requests, failing to wear a hard hat and moving through the restricted areas.

Dee Why site - Failure to produce permit

14.  On 17 June 2010 Mr Papaconstuntinos ignored several request of Cavill management employees to view his right of entry permit.

15.  After failing to produce his permit Mr Papconstuntinos remained on the site.

Alleged Contraventions

16.  The ABCC alleges:

• Mr Mitchell contravened s.500 of the FW Act by acting in an improper manner while seeking to exercise rights as a permit holder by verbally abusing employees at the Dee Why site;
• Mr Mitchell contravened s.500 of the FW Act by acting in an improper manner while seeking to exercise rights as a permit holder by assaulting employees at the Dee Why site;
• Mr Mitchell contravened s.499 of the FW Act when he ignored reasonable OHS requests at the Dee Why and Narrabeen sites; and
• Mr Papaconstuntinos contravened s.497 of the FW Act when he failed to produce his right of entry permit.

17.  The ABCC alleges that pursuant to s793 of the FW Act, the conduct of Mr Mitchell and Mr Papaconstuntinos is taken to be the conduct of the CFMEU and the CFMEU NSW Branch.

18. The ABCC filed a statement of claim in the Federal Magistrates Court at Sydney on 30 March 2011.

19. A first directions hearing is scheduled for 21 April 2011.