ABCC V CFMEU, Pearson, Vink, O’Doherty, CEPU, Hanna, Jarvis, Olsen & Malone
Allegations outlined in the ABCC’s statement of claim
The ABCC alleges the CFMEU, CEPU and seven officials contravened the Fair Work Act 2009 and the Building and Construction Industry Improvement Act 2005 by engaging in unlawful industrial action and defying orders made by Fair Work Australia. The alleged conduct relates to work stoppages at two construction sites on various dates between 28 February 2011 and 26 May 2011.
Background
1. Lend Lease is and was at all material times the principal contractor on:
o The Brisbane Supreme Court and District Court project (Law Courts project); and
o The Gold Coast University Hospital project (GCUH project).
2. Lend Lease engaged a total of 115 subcontractors across the two sites.
3. As at 28 February 2011, Lend Lease and the subcontractors working on the GCUH project employed approximately 1200 employees.
4. As at 28 February 2011, Lend Lease and the subcontractors working on the Law Courts project employed approximately 500 workers.
February Industrial Action – Law Courts Project
5. On 28 February 2011 CFMEU organisers Kane Pearson and Patrick O’Doherty entered the Law Courts project site for the purposes of holding discussions with employees who the CFMEU was entitled to represent.
6. At the time of entry Pearson and O’Doherty had not given the occupier of the site 24 hours notices as is required by the Fair Work Act 2009 (FW Act).
7. Between 8.00am and 8.45am on 28 February 2011, approximately 200 employees attended a meeting organised by the CFMEU, Pearson and O’Doherty at the Law Court project site.
8. Pearson addressed the meeting. Those assembled at the meeting passed a motion to cease work for 48 hours.
9. Following the meeting, the employees did not attend for work.
10. Pearson advised the Senior Site Manager for Lend Lease that if Lend Lease did not provide the CFMEU with information relating to contracting agreements that the employees may not return to work, and that workers were leaving in support of the CFMEU’s stance on sham contracting.
February Industrial Action – GCUH project
11. On 28 February 2011 CFMEU official Tim Jarvis entered the GCUH project site for the purposes of holding discussions with employees whose industrial interest the CFMEU was entitled to represent.
12. At the time of entry Jarvis had not given the occupier of the site 24 hours notices as is required by the FW Act.
13. Between 6.00am and 7.00am on 28 February 2011, approximately 1200 employees attended a meeting organised by the CFMEU and its officials Jarvis, Adam Olsen and Scott Vink, as well as the CEPU and its official Beau Malone.
14. The meeting was organised to update the workers on the CFMEU’s campaign against sham contracting.
15. Those assembled passed a motion to cease work for 48 hours.
16. The union officials advised the Senior Construction Manager for Lend Lease that the Respondents wanted an audit of subcontractors engaged on the site.
17. The officials also advised that the employees would not return for 48 hours in protest over concerns that sham contracting and pyramid contracting were occurring at the site.
18. Malone said words to the effect of “We do not want to see disruption but we also want to see workers on the same pay rates as each other.”
19. Despite a request from the Senior Construction Manager, Vink refused to comply with the dispute resolution procedures contained in the agreement covering the workers.
20. Vink then directed workers to cease work, saying words to the effect of “The site’s closed for 48 hours. There’s been a vote, and the site’s closed.”
February Fair Work Australia (FWA) Orders
21. On 28 February 2011 Lend Lease applied for orders under section 418 of the FW Act seeking the cessation of industrial action in relation to both sites.
22. On 28 February 2011 FWA granted orders stopping the industrial action (The February Orders).
23. FWA also issued a recommendation stating that the underlying issue was sham contracting.
24. FWA also noted that the CFMEU believed that they had an earlier agreement with Lend Lease whereby contracting relationships would be subject to an audit, and the CFMEU believed that agreement had been breached.
25. FWA recommended that the CFMEU, the CEPU and Lend Lease meet as soon as practicable to discuss auditing arrangements for the two sites.
Return to Work
26. Employees on the Law Courts and GCUH projects returned to work on 2 March 2011, having failed to perform any work since 27 February 2011.
4 April Industrial Action – GCUH Project
27. The February Orders expired on 22 March 2011.
28. On 4 April 2011 2011, approximately 500 employees scheduled to work on the GCUH project attended a meeting during work hours at the site entrance organised by the CFMEU, Vink, Jarvis and Olsen.
29. The meeting was organised to update the workers on the status of sham contractors on the site.
30. Those assembled passed a motion to cease work for 48 hours.
31. Lend Lease applied to FWA for orders under section 418 of the FW Act seeking the cessation of industrial action related to the GCUH project site.
32. On 4 April 2011, FWA granted the orders.
5 April Industrial Action – GCUH Project
33. On 5 April 2011, approximately 150 employees attended a meeting organised by the CFMEU, Vink, Jarvis and Olsen at the GCUH project site entrance.
34. Following the meeting, some of the employees who usually performed work at that site did not perform work on 5 April 2011.
6 April Industrial Action – GCUH project
35. On 6 April 2011, approximately 500 employees scheduled to perform work on the GCUH project attended a meeting during work hours at the entrance to the site
36. Following the meeting, some of the employees who usually performed work at that site did not perform work on 6 April 2011.
11 - 13 April Industrial Action – Law Courts project
37. On 11 April 2011 approximately 400 employees who were scheduled to perform work on the Law Courts project attended a meeting near the site during work hours.
38. The CFMEU, Pearson, Vink and O’Doherty organised the meeting. At the meeting one of the organisers present asked employees to withdraw their labour from the Law Courts site for 24 hours to send a clear message about “sham contracting”.
39. Following the meeting the employees did not return to the Law Courts project site and perform work.
40. On 12 April 2011 approximately 350 workers who were employed to work on the Law Courts project attended a meeting organised by the CFMEU and Pearson at the Roma Street Parklands.
41. Following that meeting, none of the employees who usually performed work on the project did not perform any work on that day.
42. On 12 April 2011 Lend Lease applied to FWA for orders under section 418 of the FW Act seeking a cessation of industrial action at the Law Courts project.
43. FWA granted the orders on 12 April 2011.
44. Despite the orders being made, On 13 April 2011 approximately 350 workers attended a further meeting during work hours at the Roma Street Parklands, and again failed to return to work after the meeting.
18 - 26 May Industrial Action – GCUH project
45. On 18 May 2011, approximately 400-500 workers attended a meeting at the GCUH project site entrance.
46. The meeting was organised by the CFMEU, Vink, Hanna, Jarvis and Olsen.
47. After the meeting, the employees protested outside the site office and picketed the gates to the site.
48. CFMEU State Secretary Michael Ravbar and Hanna met with Lend Lease’s senior management to state that there was still sham contracting going on, that everyone should be paid the same, and that Lend Lease needed to have everyone on an EBA.
49. Hanna said words to the effect of “If Lend Lease commit in writing that all workers on site will go onto an EBA and get all entitlements they’ll probably go back to work.”
50. Hanna then addressed the workers, saying words to the effect of “Bovis won’t commit to industry rates for you guys, so guys we need to move down to the gates and commence a picket on the gate entry.”
51. On 19 May 2011, approximately 300 employees attended a similar meeting, and again picketed the gates.
52. Similar actions were repeated on between 20 May 2011 and 26 May 2011, excluding Sunday 22 May.
53. On Monday 23 May, approximately 300-400 employees attended a meeting at the GCUH project site attended a picket at the site entrance.
54. Hanna addressed the crowd, saying words to the effect of:-
“We have the petition here to be signed, you all need to make sure you sign it and put your mobile number on it.
“They will be trying to see who has the biggest balls and will be trying to starve you out, so you need to hang in for the long haul.
“They tried to get a drill rig on site on Saturday, but our boys approached the operator and he left the site.
“We have something BIG planned for tomorrow, so you need to tell all your mates who are not here today to be here tomorrow.
“The importance of tomorrow will become clear soon enough.”
55. The next day, Hanna and other officials from the CFMEU invited workers to participate in a convoy that day during work hours, to drive vehicles from the GCUH project site to Brisbane.
56. The industrial action conducted on these dates was taken between 18 and 26 May 2011 was occurred despite the orders FWA made on 4 April 2011 under section 418 of the FW Act.
57. On 26 May 2011, Lend Lease applied for, and was granted, interlocutory relief against the CFMEU in relation to the industrial action occurring at the GCUH and Law Courts projects.
Alleged contraventions
58. The ABCC alleges that:
• The CFMEU, Pearson, Vink, O’Doherty, the CEPU, Jarvis, Olsen and Malone contravened section 421(1) of the FW Act by defying the Order of FWA made on 28 February 2011;
• the CFMEU, Vink, Hanna, Jarvis and Olsen contravened section 421(1) of the FW Act by defying the Order of FWA made on 4 April 2011;
• The CFMEU, Pearson, Vink and O’Doherty contravened section 421(1) of the FW Act by defying the Order of FWA made on 12 April 2011;
• Each of the respondents contravened section 417 of the FW Act by organising the industrial action on various dates;
• Each of the respondents contravened section 421(1) by defying Orders of FWA;
• Pearson, Vink, O’Doherty, Jarvis, Olsen and Malone contravened section 500 of the FW Act by hindering or obstructing or otherwise acting in an improper manner while exercising their rights as permit holders; and
• Each of the Respondents contravened section 38 of the Building and Construction Industry Improvement Act (2005) (BCII Act) by engaging in unlawful industrial action on various dates.
Compensation
59. Pursuant to section 49(1)(b) of the BCII Act and section 545(2)(b) of the FW Act, the ABCC’s application seeks orders for compensation be paid for losses to parties that have suffered because of the contraventions.
ABCC Civil Litigation Proceedings
60. The ABCC filed a statement of claim in the Federal Court at Brisbane on 6 June 2011
61. A hearing will be held on a date to be confirmed.
Penalties
62. The maximum penalties for a contravention of the FW Act are $6600 for an individual and $33,000 for an organisation.
63. The maximum penalties for a contravention of the BCII Act are $22,000 for an individual and $110,000 for an organisation.