The ABCC will allege that the respondents contravened s.500 of the Fair Work Act 2009 (FW Act) by hindering or obstructing persons on the site, and otherwise acting in an improper manner.
Background
Allegations as outlined in the ABCC’s statement of claim filed on Monday 17 October 2011. The allegations may change during the course of the proceeding.
1. Laing O’Rourke was engaged as the principal contractor for the construction of a twenty three-level office and retail project at 123 Albert Street, Brisbane (the site).
2. On 5 February 2010 Kane Pearson — an employee of the BLF and/or the CFMEU — provided a written notice to Laing O’Rourke notifying of an intention to exercise a right to enter the site on 11 February 2010.
3. At approximately 6.30 am on 11 February 2010 Mr Pearson and Shane Treadaway — an employee of the CFMEU and/or the CFMEU QLD Branch — attended the site and signed the visitors logbook.
4. The Site Foreman then approached Mr Pearson and Mr Treadaway, and asked to see their right of entry notices and workplace health and safety authorisation for both men.
5. Mr Treadaway showed a notice and health and safety authorisation.
6. Mr Pearson then spoke to the Site Foreman with words to the effect of “You’re a d**khead. I’m not dealing with you. I want to talk to [the Structures Manager]”.
7. When the Site Foreman said that Mr Pearson had to deal with him, Mr Pearson responded by calling the Site Foreman a “f***wit” and a “deadbeat”.
8. The Site Foreman did not respond, and went to find the Structures Manager.
9. After meeting the Structures Manager, Mr Pearson and Mr Treadaway provided notices containing the words indicating they were on site to inspect access and egress issues, fall from height prevention, and general housekeeping.
Conduct of the site walk
10. After Mr Pearson and Mr Treadaway provided their notices, an exchange to the following effect took place:
(a) The Structures Manager asked what the concerns were;
(b) Mr Pearson said that they were there for a safety breach, that there were problems with access and egress and working at heights, and that the problems were everywhere but he did not have to tell the Structures Manager where;
(c) Mr Pearson and Mr Treadaway asked to conduct a site walk;
(d) The Structures Manager said the Site Foreman was to accompany the men while they conducted the walk;
(e) Mr Pearson replied with words to the effect of “I’m not going on the site with him, I’m not going on the site with that f***en prick”;
(f) The Structures Manager warned Mr Pearson and Mr Treadaway that if they continued to act as they were, then they would not be allowed on site;
(g) Mr Pearson said words to the effect of “f**k you, I’m going!” before walking out of the meeting room.
11. Mr Pearson and Mr Treadaway then commenced moving around the site unaccompanied without the required personal protective equipment.
12. During the site walk, Mr Pearson and Mr Treadaway approached workers while carrying a mobile EFTPOS machine, telling workers that union fees were due.
13. Referring to the Site Foreman, Mr Pearson also said “I’ve got a puppy dog behind me, throw him a bone”.
14. The Site Foreman advised Mr Treadaway and Mr Pearson that the police had been called, and told them to leave the site.
15. Mr Treadaway and Mr Pearson refused, saying words to the effect of “Beautiful, the police are coming”, “We’re not going anywhere,” and “bring it on”.
16. At approximately 8.10 am Mr Pearson received a phone call. During the call, Mr Pearson turned to the Site Foreman and said words to the effect of “F**k off scumbag, F**k of scab! You don’t have to follow me while I’m on the phone.”
17. After 8.10 am two police officers arrived. The officers spoke to Mr Pearson and Mr Treadaway, and took a statement from the Site Foreman.
18. During this time, Mr Treadaway and Mr Pearson instructed workers to stop work.
19. Following these events, at about 9.15 am, workers took their morning smoko break.
20. At approximately 9.15am Joseph Myles — an employee of the BLF and/or the CFMEU — arrived and entered the site without providing any notice.
21. Mr Myles also failed to comply with the reasonable requirements of the site occupier with regard to personal protective equipment.
22. When the Site Foreman questioned Mr Myles as to why he was walking around the site unaccompanied and without the required personal protective equipment, Mr Myles responded to words with the effect of “I don’t have to answer to you, you f***ing little grub!”
23. Following this exchange, Mr Treadaway approached workers and again encouraged them to stop work.
24. A police officer then directed the three union officials to leave the site, before escorting Mr Pearson away from a particular area of the site.
25. Following these events, at approximately 9.45 am, Mr Myles encouraged workers not to return to work following their break.
26. As a result of the disruption that was caused to the site, a concrete pour scheduled for 9.00 am on that day was cancelled.
Alleged Contraventions
27. The ABCC alleges that Mr Pearson, Mr Treadaway and Mr Myles contravened s.500 of the FW Act by hindering or obstructing persons on the site, and otherwise acting in an improper manner.
28. The ABCC also alleges that the relevant conduct of the named union organisers is taken to be the conduct of the BLF, CFMEU and CFMEU Queensland Branch by operation of s.793 of the FW Act. Accordingly, it is alleged that the BLF, CFMEU and CFMEU Queensland Branch contravened s.500 of the FW Act.
ABCC Prosecution
29. The ABCC filed a statement of claim in the Federal Magistrates Court at Brisbane on 31 October 2011.
30. A first directions hearing was held on 30 November 2011.
Penalties
31. The maximum penalties for a contravention of the FW Act are $6600 for an individual and $33,000 for an organisation.