Office of the Australian Building and Construction Commissioner

Background information

Allegations contained in the ABCC’s statement of Claim

• Walton Constructions Pty Ltd was hired to carry out refurbishments to the Brunswick Police Station and engaged a subcontracting company to conduct traffic management services at the site in November 2005.
• On 16 November 2005, Construction, Forestry, Mining and Energy Union (CFMEU) official, Bill Oliver, directed Walton Constructions not to engage the traffic management subcontractor because the employees were employed on Australian Workplace Agreements (AWAs).
• Mr Oliver told the subcontracting company that he had a problem with its employees providing the traffic management work because they were not employed under the CFMEU’s employment terms.
• On 16 November 2005, two other CFMEU officials, Gerard Benstead and Steve Allen, told Walton Constructions and the subcontracting company that the CFMEU would not permit the subcontracting company to perform work at the site.
• On 16 November 2005, Walton Constructions terminated its agreement with the subcontracting company.
• On 28 November 2005, Mr Allen demanded that the subcontracting company enter into a certified agreement with the CFMEU if it wanted to perform the traffic management work at the Brunswick Police Station site.

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

• The officials’ actions were conduct of the CFMEU because they acted on the union’s behalf.
• The ABCC alleged that the CFMEU, Mr Oliver, Mr Benstead and Mr Allen intended to coerce Walton Constructions not to engage the subcontracting company. Intent to coerce is unlawful under s43 of the BCII Act.
• It is alleged that the CFMEU, Mr Oliver, Mr Benstead and Mr Allen breached s44 of the BCII Act because they intended to coerce the subcontracting company to make a certified agreement.
• Walton Constructions is alleged to have breached s45 of the BCII Act because it discriminated against the subcontracting company on the grounds that its employees were covered by a certain industrial instrument (AWAs).
• The ABCC alleges that the CFMEU, Mr Oliver, Mr Benstead and Mr Allen also discriminated against the subcontracting company, in contravention of s45 of the BCII Act.

Contraventions of the Workplace Relations Act 1996 (WR Act)

• The ABCC alleges that Walton Constructions breached s.298K of the WR Act because it terminated the agreement with the subcontracting company because they engaged employees on AWAs, which is prohibited reason.
• The CFMEU, Mr Oliver, Mr Benstead and Mr Allen are alleged to have breached s298K of the WR Act because it advised, encouraged or incited Walton Constructions to discriminate against the subcontracting company for a prohibited reason.

ABCC Prosecution

• The Office of the Australian Building and Construction Commissioner (ABCC) filed proceedings in the Federal Court at Melbourne on 20 March 2007.

Penalties

• The maximum penalties for coercion and discrimination under the BCII Act are $22,000 for an individual and $110,000 for an organisation.
• The maximum penalties for terminating a contract for a prohibited reason or encouraging, advising or inciting discrimination for a prohibited reason are $6600 for an individual or $33,000 for an organisation under the WR Act.