Background
Allegations as outlined in the ABCC’s statement of claim filed on 5 July 2010. The allegations may change during the course of the proceeding.
- The ABCC alleges that the CFMEU attempted to coerce a subcontractor to make an industrial agreement, discriminated against them because of an industrial agreement they had entered and engaged in unlawful industrial action on the Melbourne Markets Project site.
The Project
- The Victorian Government engaged Bovis Lend Lease Pty Ltd (BLL) to design and build a fruit vegetable and flower wholesale market at 315 Cooper Street in Epping, Victoria to replace the current Melbourne Market in West Melbourne.
- The project is known as the Melbourne Markets Project (MMP) and is scheduled to open in 2012. It is one of the Victorian Government’s largest infrastructure projects and is costed at $291m.
- In December 2009, BLL engaged Fulton Hogan Pty Ltd to carry out civil construction work at the MMP site such as earthworks, building roads and pavements, storm water drainage and service trenching.
The Agreement
- From December 2009, CFMEU organiser Gareth Stephenson held discussions with Fulton Hogan management about entering an enterprise agreement to apply on the MMP.
- In December 2009 Fulton Hogan made a greenfields enterprise agreement with the Australian Workers Union (AWU) and applied to Fair Work Australia (FWA) on 14 December 2009 for the agreement to be approved. On 22 January 2009, FWA approved the agreement.
- On 10 February 2010, the CFMEU appealed FWA’s approval of the agreement.
- On 19 February 2010, FWA set 14 April 2010 as the date for hearing that appeal. 8. On 13 April 2010, the CFMEU attempted to re-open negotiations with Fulton Hogan for an enterprise agreement on the MMP.
- On 14 April 2010, the CFMEU applied for an adjournment of its appeal of the FWA judgement. FWA refused the CFMEU’s adjournment and the CFMEU subsequently discontinued its appeal.
The Blockade
- At 6am on 19 May 2010, CFMEU Victorian Vice President Shaun Reardon and officials Mick Powell, Gerry Benstead, Brendan Pitt and Derek Christopher blocked the entrance to the MMP site with vehicles, dissuaded people from entering and told them that there would be no work at the site that day. They arranged for deck chairs, gazebo tents and CFMEU flags to be erected at the entrance.
- CFMEU officials told some workers who attempted to enter the site that, if they did so, they would be regarded as “scabs” and would never work on a CFMEU site again.
- At 6.50am Mr Benstead told BLL’s project manager that he should call CFMEU Victoria assistant secretary John Setka and that Fulton Hogan’s Project Manager should call CFMEU Victoria president Ralph Edwards.
- Victoria Police attended the site at 8.15am in an attempt to remove the blockade. By 8.30am, about 20 trucks had banked up trying to gain access to the site. At 3pm
- Mr Reardon told a Victoria Police representative that his instructions from his superiors were to refuse to remove the blockade and to maintain it at all costs.
- Apart from a small number of Fulton Hogan subcontractors entering the site through a rear entrance to perform work, no workers were able to access the MMP site and no work was performed on 19 May 2010.
- The blockade continued on 20 May 2010 when Mr Powell, Mr Reardon, Mr Christopher and Mr Benstead attended the site along with CFMEU organisers Elias Spernovasilis and Tom Watson.
- CFMEU officials arranged and oversaw delivery of a large pile of crushed rock at the MMP entrance to prevent heavy vehicles from entering or exiting the site and a 44 gallon drum filled with wood to prevent cars from accessing the site.
- The officials also superglued the locks on the main gate, erected deck chairs, CFMEU flags and signs with derogatory messages about BLL and Fulton Hogan at the entrance.
- Again, the organisers dissuaded people from entering the site and told them there would be no work at the site that day. As a result, no building work was carried out on 20 May 2010.
- The blockade continued from 21 May until 2pm on 28 May 2010. Up to 20 people attended the blockade, including the previously named officials over during that period.
Injunction
- On 20 May 2010 the ABCC issued a proceeding against the CFMEU seeking urgent injunctions to restrain the CFMEU and its officials from continuing to block the entrance to the MMP site.
- On 20 May 2010 the Federal Court issued interim interlocutory orders restraining the CFMEU and its officers, employees and agents from preventing or hindering access to the project, and from attending or leaving any vehicle, trailer or equipment within 100 metres of the site site.
- On 24 May 2010 the orders were continued and extended to restrain the CFMEU from interfering with the site or its perimeter fencing.
- The orders remain in place..
BCII Act contraventions
- On 5 July 2010 the ABCC filed a statement of claim alleging that the CFMEU, by its officers, employees and agents, contravened.
- s44 of the Building and Construction Industry Improvement Act 2005 (BCII Act) by attempting to coerce Fulton Hogan to make an enterprise agreement with the CFMEU or terminate or vary the existing greenfields enterprise agreement that Fulton Hogan had made with the AWU;
- s45 of the BCII Act by discriminating against Fulton Hogan on the ground that its employees were covered by its agreement with the AWU; and
- s38 of the BCII Act by engaging in industrial action by taking steps to prevent work at the MMP site.
- The maximum penalties for a contravention of the BCII Act are $22,000 for an individual and $110,000 for an organisation
Contempt Proceddings
- On 30 September 2010, the ABCC filed a notice of motion and statement of charge alleging contempt by the CFMEU
- The statement of charge alleges that between approximately 10.13 am on 21 May 2010 and approximately 1.38pm on 28 May 2010 the CFMEU was in contempt of the court’s orders because its officers, employees or agents did not refrain from:
- attending within 100 metres of the main entrance to the site; .
- placing or leaving vehicles within 100 metres of the main entrance of the site;
- organising persons to attend within 100 metres of the main entrance to the site (other than for permissible purposes);
- preventing or hindering access of any person or vehicle to the site; and
- counselling people not to enter the site, and counselling BLL and Fulton Hogan employees and contractors not to work on the site.
The court has not yet considered the allegations of contempt.