Office of the Australian Building and Construction Commissioner

Allegations outlined in the ABCC’s statement of claim

• Diploma Constructions (WA) Pty Ltd was the head contractor on a four-level office building with car parking facilities being constructed at 71 Walters Drive in Herdsman, Western Australia. The project is known as the Herdsman Business Park.
• At 7.15am on 25 February 2008, CFMEU WA assistant secretary Joe McDonald told Diploma’s site manager that all the workers on the project needed to be members of the CFMEU. Mr McDonald also stated there was an agreement between Diploma and the CFMEU that all workers be members of the union.
• The site manager responded that there was no such agreement and it was not a ‘union site’.
• At 8am, Mr McDonald conducted a meeting with the employees of various subcontractors at which he repeated his claim that Diploma and the CFMEU had an agreement that all workers on its site must be union members.
• Mr McDonald asked if any of the workers present were not CFMEU members. About five or six people raised their hands. Mr McDonald asked if any of them opposed joining the union. One worker responded that he did. Mr McDonald said to the worker “you can f**king go and find somewhere else to work. You can go and join the housing industry. So everyone else here who doesn’t oppose the union will be joining the union?”
• During the meeting, Mr McDonald said the site was going to be closed down because there were not enough amenities or toilets and the scaffolding was not safe. After the meeting he instructed the workers to go to the ‘smoko sheds’.
• Following the meeting, two other CFMEU officers instructed workers around the site to stop work and leave the site. As a result, all but four workers stopped work shortly after the meeting and did not return until the following day.
• Shortly after, the site manager told Mr McDonald he had arranged for additional chemical toilets to be supplied to the site. Mr Donald responded “I don’t care, the men aren’t going back to work.”

Alleged Contraventions

• The ABCC alleges that Mr McDonald and the CFMEU contravened:
• Section 38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) byengaging in unlawful industrial action when they instructed the workers to stop work.
• Section 790(1) of the Workplace Relations Act 1996 (WR Act) by making false and misleading statements that workers at the site were obliged to be members of the union.
• Section 789 of the WR Act by taking action to coerce a person to become a member of the union.
• Section 791 of the WR Act by taking industrial action on the grounds that some workers on the site did not propose to become members of a union.

ABCC Prosecution

• The ABCC filed a statement of claim in the Federal Magistrates Court at Perth on 6 January 2010.
• A directions hearing is scheduled for 12 February 2010 at 9.45am.

Penalties

• The maximum penalties for a contravention of the BCII Act are $22,000 for an individual and $110,000 for an organisation.
• The maximum penalties for a contravention of the WR Act are $6600 for an individual and $33,000 for an organisation.