27 March 2009 - Update
Jagot J in the Federal Court at Sydney on 26 March 2009 imposed the following penalties:
- Mr Joseph O'Connor, the AWU delegate: Contravened s.38 of the BCII Act and sections 170MN and 178 WR Act October stoppage: $6,500; November stoppage: $2,500 - Total $9,000
- AWU Federal: Contravened s.38 of the BCII Act and sections 170MN and 178 WR Act October stoppage: $20,000; November stoppage: $8,000 - Total $28,000
- AWU - NSW: Contravened s.38 of the BCII Act (not a party to the certified agreement) October stoppage: $12,500; November stoppage: $5,500 - Total $18,000
20 October 2008 - Update
Judgment in Alfred v Wakelin (No. 2) [2008] FCA 1543, 17 October 2008. The Federal Court at Sydney held that the AWU, the AWU (NSW) and their delegate Joseph O’Connor had contravened s.38 of the BCII Act, s.170MN of the WR Act and the relevant certified agreement by engaging in unlawful industrial action in both October and November 2005.
25 September 2008 - Update
Judgment in Alfred v Wakelin (No. 1) [2008] FCA 155. Jagot J. imposed a penalty of $1,100 on Mr Wakelin and $8,000 on the CFMEU.
18 September 2008 - Update
Penalty hearing against the CFMEU and Robert Wakelin in respect of the second strike only. Judgment on penalties reserved.
15 – 17 September 2008 - Update
In the Federal Court at Sydney Jagot J. heard the ABCC case against Mr O’Connor, the AWU and the AWU (NSW). Judgment reserved.
15 September 2008 - Update
On the first day of the scheduled hearing, the CFMEU and Robert Wakelin, a CFMEU delegate, admitted to having engaged in unlawful industrial action, in breach of s.38 of the BCII Act in respect of the second strike, namely that on 10 November 2005. The ABCC agreed not to pursue the CFMEU and Mr Wakelin in respect of the first strike.
Proceedings against the CFMEU (Qld), Federated Engine Drivers’ and Firemens’ Association of Qld (FEDFA), Robert Jones, Charles Abela, Mark Batzloff were discontinued.
10 September 2007
Date Backgrounder issued.
Background Facts
As alleged in the ABCC’s original statement of claim
The owner of a gold mine at Lake Cowal, 45 kilometres from West Wyalong in NSW, engaged John Holland Pty Ltd as head contractor to carry out a construction project at the mine.
John Holland employed up to 300 workers on the $480 million project and provided meals, transport and accommodation at a specially constructed camp.
John Holland, the CFMEU and the AWU were parties to a certified agreement.
On 14 October 2005, an employee told Robert Wakelin, a representative of the CFMEU, CFMEU Qld and the Federated Engine Drivers’ and Firemens’ Association of Qld (FEDFA), that his meal at the camp was contaminated. Mr Wakelin repeated the allegation to John Holland.
On the same day, John Holland dismissed the employee because he failed a routine drug test.
First stoppage – 15-17 October 2005
The ABCC alleges that at 6.30am on 15 October 2005, Joseph O’Connor, a representative of the AWU and AWU NSW, as well as Mr Wakelin and CFMEU representatives Charles Abela and Robert Jones, encouraged the employees at a stop-work meeting to go on strike.
The employees voted to go on strike until 17 October 2005 in support of claims against John Holland concerning the food, kitchen and mess at the camp.
Mr Wakelin and Mr Jones allegedly told the employees they should leave the site. Mr Wakelin also allegedly told some employees they should go into the crib huts and throw out food, milk and fruit from the fridges.
No employees attended for work from 6.30am on 15 October 2005 until 6.30am on 17 October 2005.
A further stop-work meeting was held on 17 October 2005. Mr Jones and Mr Wakelin allegedly encouraged the employees to continue the strike. The employees continued on strike until 6.30am on 18 October 2005.
Second stoppage – 10 November 2005
The CFMEU notified the dispute over food and hygiene standards to the Australian Industrial Relations Commission (AIRC).
On 9 November 2005, the AIRC held a conciliation hearing.
At 10.30am on 10 November 2005, an authorised 15-minute stop work meeting went ahead for the employees to discuss the outcome of the conciliation hearing. The meeting exceeded the authorised time and John Holland instructed the employees to return to work..
The ABCC alleges that Mr Wakelin, Mr Jones, Mr O’Connor and Mr Batzloff, and through them, the five unions they represented, encouraged the employees to go on strike for the rest of the day.
The employees who had attended the meeting did not attend work from 11am on 10 November 2005 until 6.30am on 11 November 2005.
AIRC decision
On 30 November 2005, the AIRC made a finding it was “not convinced” that the condition of the kitchen posed a health and safety risk.
Contraventions of the Building and Construction Industry Improvement Act 2005
As alleged in the ABCC’s original statement of claim
The ABCC alleges that Mr Wakelin, Mr Jones, Mr Abela, Mr O’Connor and Mr Batzloff and the employees engaged in unlawful industrial action in contravention of s38 of the BCII Act.
The action taken by the individuals is alleged to be the conduct of the unions because it was carried out on their behalf in their role as representatives. As such:
- the action taken by Mr Wakelin and Mr Batzloff is alleged to be the conduct of the CFMEU, CFMEU Qld and FEDFA Qld;
- the action taken by Mr Jones is alleged to be the conduct of the CFMEU and CFMEU Qld;
- the action taken by Mr Abela is alleged to be the conduct of the CFMEU and
- the action taken by Mr O’Connor is alleged to be the conduct of the AWU and AWU NSW.
Contraventions of the Workplace Relations Act 1996 (WR Act)
As alleged in the ABCC’s original statement of claim
The ABCC alleges that Mr Wakelin, Mr Jones, Mr Abela, Mr O’Connor and Mr Batzloff contravened s170MN of the WR Act by engaging in industrial action for the purpose of supporting or advancing claims against John Holland in respect of employment covered by the certified agreement.
Again, the action taken by the individuals is alleged to be the conduct of the unions because it was carried out on their behalf in their capacity as representatives.
Contraventions of the certified agreement (in breach of s178 of the WR Act)
As alleged in the ABCC’s original statement of claim
The ABCC alleges that Mr Wakelin, Mr Jones, Mr Abela, Mr O’Connor and Mr Batzloff, the CFMEU and AWU breached the agreement by:
- failing or refusing to attend for work in circumstances where there was no unsafe environment which prevented work being performed;
- to the extent that there were genuine and reasonable concerns about the safety of the food in the camp kitchen, failing or refusing to act in good faith and co-operate so that work could continue;
- failing or refusing to attend for work when alternative food arrangements were offered by John Holland;
- failing to act with fidelity and good faith in the performance of the agreement;
- acting so as to prevent work being performed by the employees;
- failing to comply with the dispute settlement procedures under clause 10(d) of the agreement; and
- failing to obey lawful directions to return to work.
Penalties
The maximum penalties for breaching s38 of the BCII Act are $110,000 for an organisation or $22,000 for an individual.
The maximum penalties for breaching s170MN of the WR Act were $33,000 for an organisation or $6,600 for an individual.
The maximum penalties for breaching s178 of the WR Act were $33,000 for an organisation and $6,600 for an individual, with an additional $16,500 for an organisation and $3,300 for an individual for each day on which the breach continued.