Australian Building and Construction Commissioner v Myles, Pearson, Treadaway, BLF, CFMEU & CFMEU Queensland Branch
The ABCC will allege that the respondents engaged in unlawful industrial action, asked an employer to make unlawful payments and contravened the terms of agreement covering workers on the project.
Background
Allegations as outlined in the ABCC’s statement of claim filed on Monday 17 October 2011. The allegations may change during the course of the proceeding.
Laing O’Rourke was engaged as the managing contractor for building work associated with the Brisbane Convention and Exhibition Centre project, located at Merivale Street, South Brisbane.
13 January 2010
Joseph Myles - an official of the BLF and/or the CFMEU - and Shane Treadaway -an employee of the CFMEU and/or the CFMEU Queensland branch entered the project site between 6.15 am and 7.00 am on 13 January 2010.
Mr Myles and Mr Treadaway spoke to workers engaged on the project until shortly before 7.00 am.
Mr Myles and Mr Treadaway met with the project manager, saying that the reason for their visit was safety issues around access and egress, but would not elaborate on the nature of the issues.
Mr Myles and Mr Treadaway said that the workers were sitting down until the safety issues were rectified.
Subsequently, the project manager conducted a site walk, during which Mr Myles and Mr Treadaway identified a number of alleged safety issues. None of the issues raised posed an imminent risk to the safety of workers at the site.
During the walk around site, Mr Myles and Mr Treadaway said words to the effect that the project manager was a “Pommie bastard”; a “Pommie c***” and a “f***ing Pom”.
Mr Myles and Mr Fisher then met with workers. After that meeting all except for four of the workers left the site and failed to perform their previously scheduled work for that day.
14 January 2010
Shortly after 6.00 am on 14 January 2010, the project manager met with Mr Myles, Mr Treadaway, a BLF delegate and a CFMEU delegate, to inform them that the remaining workers and some engineers had closed out the safety issues.
Mr Myles said that this was against demarcation, and the Laing O’Rourke should have used union members to close out the safety issues.
Mr Myles and Mr Treadaway said that the project manager had better be ready to bargain if he wanted the men to go back to work, and that the workers who had gone on strike the day before should be paid.
When the project manager said he would not pay the men as it would be illegal, Mr Treadaway said words to the effect of “if that’s how you’re going to be, I’ll make sure you can’t use your jump form for six months.”
Mr Myles and Mr Treadaway addressed the workers to convey the message that they would not be paid for the day they went on strike.
As a result, the workers left the site and failed to perform their scheduled work for the rest of that day.
Laing O’Rourke filed an application for an order from Fair Work Australia to stop the unprotected action.
20 May 2010
On 20 May 2010 Kane Pearson - an official of the BLF and/or the CFMEU - and Mr Treadaway entered the site, stating that they wished to hold discussions with workers regarding a breach of the industrial agreement.
During the meeting, the project manager stated that if Laing O’Rourke was in breach of the agreement there was an agreed dispute resolution process that must be observed.
During the meeting, Mr Treadaway said the workers would sit down for as long as it takes.
The project manager addressed the workers to inform them they would not be paid for the time they were on strike, and that there was a clear dispute resolution procedure in place.
Mr Treadaway and Mr Pearson then asked the project manager how much pay would be docked, and ask the project manager to pay the workers that had taken strike action.
Alleged Contraventions
The ABCC alleges that:
- On 13 January 2010 and 14 January 2010, each of the respondents except for and excluding Mr Pearson contravened s.38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) by engaging in unlawful industrial action;
- On 20 May 2010 Mr Pearson, Mr Treadaway, the BLF, the CFMEU and the CFMEU QLD branch contravened the BCII Act by engaging in unlawful industrial action;
- On 14 January 2010 Mr Treadaway, the CFMEU and the CFMEU QLD branch contravened s.475(2) of the Fair Work Act 2009 (FW Act) by asking the employer to pay workers for time spent striking; and
- Mr Myles, Mr Pearson, Mr Treadaway and the CFMEU contravened Schedule 16, Item 2(2) of the Fair Work (Transitional Provisions and Consequential Amendments) Act by failing to observe the grievance process in the Laing O’Rourke agreement.
Compensation
The ABCC is seeking orders from the Court against each of the respondents for compensation under section (49)(1)(b) of the BCII Act
The ABCC is seeking orders from the Court against Mr Treadaway, the CFMEU and the CFMEU QLD branch for compensation under s.545(2)(b) of the FW Act.
ABCC Prosecution
The ABCC filed a statement of claim in the Federal Magistrates Court at Brisbane on 17 October 2011.
A first directions hearing took place on 17 November 2011.
Penalties
The maximum penalties for a contravention of the BCII Act are $22,000 for an individual and $110,000 for an organisation.
The maximum penalties for a contravention of the FW Act are $6600 for an individual and $33,000 for an organisation.