Office of the Australian Building and Construction Commissioner

Background

Allegations outlined in the ABCC’s statement of claim

• Procast Australia Pty Ltd was a manufacturer of precast concrete panels and pre-stressed elements from its business premises in Heathwood, Queensland.
• Workpac was a subcontractor of Procast. Workpac’s employees were not CFMEU members and the CFMEU was not a party to their workplace agreement.
• At 2.50pm on 10 December 2008, CFMEU official Wayne Carter gave notice, via fax, that he intended to visit the site the following day to hold discussions with eligible employees under s760 of the Workplace Relations Act 1996 (WR Act).
• There were no eligible employees at the site as none of them were CFMEU members, or party to an agreement with the union.
• On the afternoon of 10 December 2008, Workpac’s Industrial Relations Director told another CFMEU representative that the union had no legal right or entitlement to enter the site. The representative responded that Mr Carter ‘will probably attend the premises regardless’.
• At 9.35am on 11 December 2008, Mr Carter entered the premises without giving 24 hours’ notice. Mr Carter had no legal right to enter the premises under s760 of the WR Act because there were no CFMEU members there and the CFMEU was not party to the workplace agreement.
• Procast’s chief operating officer and Workpac’s Industrial Relations Director met Mr Carter near the crib room. He did not show his right of entry permit, introduced himself as ‘junior’ and said he was from the Builders’ Labourers Federation to talk to the staff.
• The chief operating officer told Mr Carter he had no right of entry and requested he leave the premises. Mr Carter responded ‘I’m not f**king leaving’.
• The chief operating officer repeated his request, to which Mr Carter responded ‘you don’t know the f**king law a**hole’.
• During this exchange 20 workers gathered near the crib hut. The chief operating officer instructed them to go back to work. Mr Carter said ‘they are not going back to work, they want to talk.’
• The chief operating officer asked Mr Carter to leave again. Mr Carter said he was there on safety grounds under Part 15 of the WR Act, stating that the toilets were unhygienic.
• Mr Carter then said he was going to his car to write up his concerns. As he moved past the chief operating officer, he dropped his shoulder into his chest, pushing the chief operating officer back against a safety barrier.
• The chief operating officer followed Mr Carter out to his car and again asked him to leave the site. Mr Carter struck the chief operating officer with his shoulder, forcing him to spin 180 degrees, knocking him to the ground and causing his hardhat to become dislodged.

Alleged Contraventions

• The ABCC alleges Mr Carter and the CFMEU contravened:
• Section 768(1) of the WR Act when Mr Carter made misrepresentations about his right of entry.
• Section 767(1) of the WR Act when Mr Carter acted in an improper manner while exercising his rights as a permit holder.

ABCC Prosecution

• The ABCC filed a statement of claim in the Federal Magistrates Court at Queensland on 11 January 2010.
• A directions hearing is scheduled for 4 March 2010.

Penalties

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