Office of the Australian Building and Construction Commissioner

Decision

• On 14 November 2007, Federal Magistrate Burchardt found the CFMEU and its official Colin Stewart contravened section 38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) by engaging in a two and a half day strike in September 2005.
• The CFMEU was also found to have contravened clauses 14 and 27 of the Roche Mining/CFMEU Murray Basin Development Project Construction site agreement.
• Federal Magistrate Burchardt ordered the CFMEU to pay penalties of $35,000 and Mr Stewart to pay $7000. Mr Stewart is not obliged to pay half of the penalty for 12 months if he is not adjudged to have breached the BCII Act or the Workplace Relations Act 1996 (WR Act), in so far as it relates to the building and construction industry, during that time.

Directions hearing

• The parties filed identical statements of facts prior to a hearing at the Federal Magistrates Court at Melbourne on 11 October 2007.
• The ABCC submitted the CFMEU and Mr Stewart contravened section 38 of the BCII Act. The respondents made no submissions about the alleged contraventions.
• The ABCC alleged that the strike was serious for the following reasons
• the strike occurred despite agreement being reached the day before that Roche Mining (JR) Pty Ltd (RMJR) had done what it could to make the Burgins Road crossing safer, and it was safe for the workers to return to work;
• it was only after Mr Stewart attended the site at the behest of CFMEU members that the issue was re-agitated with RMJR management;
• the strike was contrary to the agreement;
• it was intended that the strike continue for 10 days;
• it was only after RMJR sought orders from the Australian Industrial Relations Commission that the strike ceased; and
• RMJR asserted that the cost of the strike was about $330,000.
• The ABCC asked the court to impose a penalty of up to $60,000 against the CFMEU and a penalty of $12,000 against Mr Stewart with $6,000 suspended for 12 months.
• The respondents submitted that if the Court determines they breached section 38, declarations, but no penalties should be imposed. The respondents further submitted if the Court imposed penalties, the appropriate amount would be $10,000 to $15,000 against the CFMEU and $0 to $5,000, fully suspended, against Mr Stewart.
• The proceeding was filed on 24 August 2006.

Background facts

As contained in the statement of agreed facts

• RMJR was engaged by Illuka Ltd to construct a mineral sands separation plant (MSP) at Burgins Road, Hamilton in Victoria and a wet concentrate plant in Douglas, Victoria.
• Most employees who worked at the MSP site lived temporarily in a nearby camp. Buses which transported the workers to and from the camp were required to travel across the Burgins Road railway crossing to get to the site.
• About 6.45am on 22 September 2005, a bus transporting about 10 RMJR employees arrived at the MSP site. The driver and passengers said they were involved in a near miss with a train at the Burgins Road crossing.
• A mass meeting of all the workers at the site (288 people) took place at 7am to inform them of the incident and action that would or should be taken.
• At 8.30am, a delegation of shop stewards and three Occupational Health and Safety (OH&S) representatives met with management. A number of solutions to fix the crossing were raised including:
• two stop/go men to stand at the crossing (which RMJR refused to do);
• installing electronic warning signs on each side of the crossing;
• boom gates to be installed;
• having the white lines on Burgins Road at the crossing re-painted;
• replacing the existing give way signs with stop signs; and
• levelling the ground on the railway easement and removing shrubs to improve visibility (it was requested that this be done on the day and this measure was not done on that day).
• Management undertook to contact the council and railway authorities about the possibility of, and responsibility for, upgrading the signals at the level crossing.
• Management spoke to council representatives about replacing the give way signs with stop signs, painting stop lines on the road and earthworks to improve visibility.
• At 11am, management told the workers about the discussion with the council. Management also said it had arranged to install flashing warning signs to notify approaching vehicles of the change in traffic conditions and told the workers Illuka was planning to install crossing lights in early 2006 but this was not something that was within RMJR’s control. The crossing lights have not been installed.
• The OH&S representatives then addressed the workers, stating RMJR had done what it could that afternoon to make the crossing safer. The OH&S representatives agreed it was safe for the employees to return to work.
• Half an hour later, the delegation of stewards and OH&S representatives told management the workers accepted management’s actions on the condition it continued to actively pursue the upgrading of the crossing with Illuka, VicTrack and the Council.
• The employees returned to work at 1.30pm, after their lunch break, and continued until the end of their working day at 5pm.
• By the time the workers were leaving the site, give way signs had been replaced with stop signs, white lines had been repainted and one flashing warning sign was in place on the exit lane. A second flashing warning sign was in place for the incoming lane prior to 6am the following day.
• After work on 22 September 2005, CFMEU members visited CFMEU official Colin Stewart at his home and told him they were not satisfied with the outcome of the day and requested he attend the site the following day.
• On 23 September 2005, all the workers stopped work to attend a mass meeting. Mr Stewart was the only union official at the mass meeting. The workers voted to go on strike. Mr Stewart did not take steps to persuade the workers not to go on strike.
• There were 288 workers at the site; 40 were members of the CFMEU. The other workers were members of other unions. After the meeting the RMJR employees and other workers started leaving the site.
• Mr Stewart and a delegation of other union representatives attended management offices and informed management that the workers were withdrawing their labour until 4 October 2005 – 10 days later.
• The date and duration of the strike was not related to any rectification works at the crossing. Management urged Mr Stewart and the other union representatives to withdraw the strike and informed them it was in breach of the relevant certified agreements.
• RMJR made an application at the AIRC for a section 127 order to stop the industrial action. In a conciliation conference in the AIRC on 27 September 2005, the CFMEU and other unions that were represented in the proceedings consented to a recommendation that the workers return at 1.30pm the following day.
• The CFMEU sought a compulsory conference which required the attendance of RMJR, Vic Track, the council and representatives from all the unions with a presence on the site. The dispute resolution procedure was also amended on request from the CFMEU.
• The majority of workers returned to work at 1.30pm on 28 September 2005. There was no work performed by the RMJR employees on 24, 25 or 26 September 2005. The weekend of 24 and 25 September was a designated industry lock down weekend (AFL grand final weekend) and 26 September 2005 was a rostered day off.
• The CFMEU did not follow the dispute resolution steps required in the RMJR agreement and did not ensure work continued as normal while the dispute was being resolved.
• RMJR claimed the cost to it as a result of the strike was $330,000. The CFMEU disputes this figure.