Office of the Australian Building and Construction Commissioner

Allegations to be made in support of the ABCC’s application for interlocutory injunctions

• In June 2009 Diploma Constructions (WA) Pty Ltd were engaged to perform building works at the Knoxville site, located at 915 Hay Street, Perth.
• On Friday 5 June 2009, CFMEU Assistant Secretary Mr Joe McDonald and CFMEU officer, Mr Michael Buchan visited the site. Mr Buchan addressed employees of contactors engaged at the site and directed or counselled them to leave the site for a three day period.
• At 10.15am, employees of nine contactors engaged at the site stopped work and did not return to work that day.
• The employees failed to attend work at the site as scheduled on Saturday 6 June 2009 and Monday 8 June 2009.
• On Wednesday 24 June 2009, Mr McDonald attended the site and addressed a group of employees in the street outside the site.
• Shortly after addressing the employees, Mr McDonald raised two safety issues with representatives of Diploma Constructions. One of the safety issues raised by Mr McDonald had been dealt with on 22 June 2009 in consultation with the CFMEU. The other safety concern did not pose any imminent risks to the safety of employees and could have been resolved by following the dispute procedures in the relevant agreement.
• Employees of four subcontractors at the site left the site and failed to perform work for the remainder of the day.
• On Thursday June 25 2009, employees of five subcontractors failed to attend to perform work at the project.
• On the same day Mr Buchan attended the site and spoke with a representative of Diploma Constructions about two further safety issues. Neither safety issue posed an imminent risk to the safety of employees at the site.
• On Friday 26 June 2009, the employees returned to work at the site.

Alleged contraventions

• On 5, 6 and 8 June 2009, and 24, 25 June 2009 the CFMEU, Mr Buchan and Mr McDonald contravened s. 38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) by organising, aiding and abetting, counselling or procuring a ban, limitation or restriction on the performance of, or a failure or refusal to perform, building work.

ABCC Prosecution

• The ABCC filed proceedings in the Federal Court in Perth on Friday 26 June 2009. The first hearing in this proceeding will take place on 2 July 2009. At that hearing, the ABCC intends to seek that interlocutory injunctions pursuant to s.39(1) and 49(1)(c) of the BCII Act be imposed, restraining each of the respondents from:
• ·         counselling employees of Diploma Constructions to fail to attend for work,
• ·         placing a ban, limitation or restriction on the performance of work at the site, or
• ·         attending or organising within 100 metre of the site.
• The ABCC is seeking that each of the respondents pay for damages suffered to Diploma Constructions pursuant to s.49 of the BCII Act.

Penalties

• The maximum penalties for a contravention of s.38 of the BCII Act are $22,000 for an individual and $110,000 for an organisation.