Office of the Australian Building and Construction Commissioner

Allegations in the ABCC’s statement of claim

• Paper Australia Pty Ltd owns and operates the Maryvale Paper Mill facility in Morwell, Victoria. During 2007 and 2008, Paper Australia was undertaking a large expansion project involving various building and construction works at the site, known as the Pulp Mill Project (PMP).
• BMC Welding and Construction Pty Ltd (BMC) were engaged by Paper Australia to perform welding work on the PMP under the terms of the BMC Welding and Construction Pulp Mill Agreement 2006 (BMC Agreement).
• On 24 July 2007 Mr Terry Lee, organiser for the Australian Workers’ Union (AWU) held a 1.00pm meeting with employees of BMC in the crib room at the PMP site. The meeting was scheduled to finish at 1:30 pm.
• At approximately 1.50pm the meeting concluded and the BMC employees left the crib room. Each BMC employee who had attended the meeting failed to return to work for the remainder of the working day.
• BMC General Manager, Mr Michael Dixon escorted Mr Lee to the project’s main gate. Mr Lee said words to the effect that as the meeting had run overtime the employees “would be docked 4 hours pay anyway” so they had gone home for the day.
• The ABCC alleges that the industrial action was “industrially motivated action” for the purposes of the Building and Construction Industry Improvement Act 2005 (BCII Act) and was motivated by the purpose of supporting or advancing claims against BMC.
• The ABCC alleges that the purpose of the alleged unlawful industrial action in response to the following circumstances:
• In or around March 2007, Paper Australia and a contractor engaged on the site, Transfield Services (Australia) Pty Ltd , agreed that Transfield employees could work shorter overtime hours at the PMP on Saturdays without a reduction in pay;  
• The AWU and the BMC employees requested that the BMC agreement be varied to allow BMC employees to also finish work early on Saturday’s without a reduction in pay. BMC refused this request.

Alleged Contraventions

• The ABCC alleges that Mr Lee and the AWU engaged in unlawful industrial action by banning employees of BMC Welding from performing work at the PMP, in contravention of the following workplace laws:
• Section 38 of the BCII Act;
• Section 494 of the Workplace Relations Act 1996 (WR Act).
• Section 719 of the WR Act was allegedly contravened through a failure to follow the dispute resolution procedures at clause 11 of the BMC Agreement.

ABCC Prosecution

• The ABCC filed proceedings in the Federal Magistrates’ Court at Melbourne on 30 March 2009. The first directions hearing is scheduled for 27 April 2009.

Penalties

• The maximum penalties for a contravention of s.38 of the BCII Act are $22,000 for an individual and $110,000 for an organisation.
• The maximum penalties for a contravention of s.494 of the WR Act are $6,600 for an individual and $33,000 for an organisation.
• The maximum penalties for a contravention of s.719 WR Act are $6,600 for an individual and $33,000 for an organisation.