Office of the Australian Building and Construction Commissioner

Background

Allegations outlined in the ABCC’s statement of claim

• Lend Lease Development Pty Ltd was the head contractor at St Patrick’s Estate building project in Manly, Sydney.
• On 3 December 2008 CFMEU officials Brian Parker, Rebel Hanlon, Robert Kera and Thomas Mitchell entered the project site, citing the Occupational Health and Safety Act 2000 (NSW) and Part 15 of the Workplace Relations Act 1996 (WR Act).
• Mr Parker, Mr Hanlon and Mr Kera failed to comply with a site manager’s request to undergo a site safety induction as a condition of remaining on the site, in contravention of the WR Act.
• Mr Mitchell climbed on scaffolding on the exterior of the project. The site’s Environmental Health and Safety Officer made three requests that Mr Mitchell immediately get off the scaffolding as it was in the process of being altered and its safety status was not known. Mr Mitchell failed to comply with the requests, in contravention of the WR Act.
• Mr Parker, Mr Hanlon and Mr Kera persuaded persons working for a subcontractor at the site to stop work and leave the site, thereby hindering and obstructing Lend Lease Development and other subcontractors working at the site, in contravention of the WR Act.
• On 4 December 2008 Mr Parker, Mr Hanlon Mr Kera and Mr Mitchell returned to the site and parked two vehicles in the vicinity of a crane that was being dismantled. The site manager asked the union officials to move their vehicles as they were creating an OHS risk. Mr Parker did not immediately respond to this request and failed to move the vehicles for a period of about 20 minutes, thereby contravening the WR Act by intentionally failing to comply with an OHS requirement and unlawfully hindering and obstructing others.
• Mr Mitchell then drove a car into a cyclone fencing gate at the site, endangering a site manager who was standing in view of Mitchell, one metre from the other side of the gate. The assault took place in front of Mr Hanlon and Mr Kera who laughed, indicating their approval of the assault.

Alleged Contraventions

The ABCC alleges that on 3 December 2008:

1. The CFMEU, CFMEU (NSW), Mr Parker, Mr Hanlon and Mr Kera and Mr Mitchell respectively contravened s.758(3)(c) and s.767(1) of the WR Act by failing to comply with an occupational health and safety requirement.
2. The CFMEU, CFMEU (NSW), Mr Parker, Mr Hanlon and Mr Kera contravened s.767(1) of the WR Act by intentionally hindering and obstructing while exercising rights as a permit holder. The ABCC alleges that on 4 December 2008:
3. The CFMEU, CFMEU (NSW) and Mr Parker contravened s.758(3) and s.767(1) of the WR Act by failing to comply with an occupational health and safety requirement and hindering and obstructing while exercising rights as a permit holder.
4. The CFMEU, CFMEU (NSW), Mr Parker, Mr Hanlon Mr Kera and Mr Mitchell contravened s. 767(1) of the WR Act by acting in an improper manner while exercising rights as permit holders.

ABCC Prosecution

• The ABCC filed a statement of claim in the Federal Magistrates Court in Sydney on 23 December 2009.
• A first directions hearing has been scheduled for 25 February 2010.

Penalties

• The maximum penalties for a contravention of the WR Act are $6600 for an individual and $33,000 for an organisation.