Office of the Australian Building and Construction Commissioner

Background facts

As alleged in the statement of claim filed by the ABCC:

• A construction company was engaged to build an office block and warehouse/production facility at University Hill Estate in Bundoora, Victoria.
• The construction company hired a subcontractor to perform earthmoving works at the site and another subcontractor to carry out temporary concrete paving to the sheds and facilities on the site.
• On 20 October 2005, CFMEU organisers Robert Mates and Danny Berardi directed there be a stoppage at the site of the earthworks and site amenities works which the subcontractors had been appointed to carry out.
• As a result of the bans, the site closed at 9.30am and remained closed for the day.
• On 21 October 2005, Mr Berardi told the head contractor that the bans on the site amenities works would be lifted, but the ban on any productive work, including the earthworks, would remain.
• The continuation of the work ban was linked to demands made by Mr Mates, Mr Berardi and CFMEU representative Alec Tadic that the site operate under a mixed metals agreement and that there be shop stewards on site.
• On 24 October 2005, Mr Mates and Mr Tadic attended the head contractor’s office in Melbourne and said words to the effect:
• the CFMEU would abandon its demand for a mixed metals agreement if the head contractor employed its nominated worker;
• the project would receive a lot of attention, in the order of two to three visits per union organiser per week for the life of the project;
• the head contractor could arrange as many section 127 applications and Industrial Relations Commission appearances as it liked however the CFMEU, the ETU and the plumber’s union would still be focusing on the site;
• despite the head contractor being a good company with regard to their endeavours, at some stage things would not be 100 per cent and they would be there to pick it up;
and
• as the head contractor was not going to employ the CFMEU’s nominated workers, the
• bans would remain in place and the mixed metals agreement was still sought.

Contraventions of the Building and Construction Industry Improvement Act 2005 (BCII Act)

• The ABCC alleges:
• Mr Mates and Mr Berardi engaged in unlawful industrial action contrary to s.38 of the BCII Act.
• Mr Mates and Mr Tadic contravened s.43(1)(b) of the BCII Act by taking action, and threatening to take action, against the head contractor with the intent to coerce it to engage a person nominated by the CFMEU.
• The CFMEU is liable for the conduct of Mr Mates, Mt Berardi and Mr Tadic.

ABCC Prosecution

• The ABCC filed proceedings in the Federal Court at Melbourne on 3 August 2007.
• A directions hearing is scheduled for 30 November 2007.

Penalties

• The maximum penalties for engaging in unlawful industrial action under the BCII Act are $22,000 for an individual and $110,000 for an organisation.
• The maximum penalties for coercion under the BCII Act are $22,000 for an individual and $110,000 for an organisation.