As alleged in the ABCC’s statement of claim
- L.U. Simon Builders was engaged to manage a building project at the Aquavista building site at 401 Docklands Drive, Docklands in Victoria.
- On 13 September 2006, L.U. Simon entered into a contract with Axiom Design to supply and install a glass balustrade and steel handrail to the level 15 mezzanine stairs at the Aquavista site.
- Some time after 13 September 2006, Axiom subcontracted the work out to Mr Peter Vanderkley. Mr Vanderkley’s business had two employees.
- On 2 March 2007, L.U. Simon’s foreman at the site contacted Axiom’s sales manager to require him to install the balustrade and hand rail. Axiom’s sales manager then instructed Mr Vanderkley to attend the Aquavista site on 6 March 2007 to undertake the work.
- On 6 March 2007, Mr Vanderkley and an employee attended the site.
- An L.U. Simon employee refused Mr Vanderkley and his employee access to the Aquavista site on the grounds that Mr Vanderkley’s employees were not covered by a workplace agreement with the CFMEU. Mr Vanderkley and his employee left the site.
- On 9 March 2007, Mr Vanderkley and his employee attended the site again and were refused entry. The L.U. Simon site foreman told Mr Vanderkley he should go to the CFMEU office and sign an EBA with the union. The foreman told Mr Vanderkley that he needed to get Incolink and CoINVEST membership, as well as an EBA with the CFMEU, before he or his employees could begin work at the site.
- On 16 March 2007, Mr Vanderkley sent a fax to the L.U. Simon site foreman providing details of CBus, CoINVEST and Red Card accreditation for himself and his employees. The fax also contained Incolink details for his employees as well as WorkCover and public liability insurance details for the business.
- On 22 March 2007, Mr Vanderkley and an employee attended the site again.
- The L.U. Simon site manager denied them access to the site on the grounds that L.U. Simon did not have a contract with Mr Vanderkley.
- Later, on 22 March 2007, L.U. Simon varied Axiom’s contract so that it was no longer required to install the balustrade or handrail.
Alleged contraventions
- L.U. Simon is alleged to have:
- discriminated against Mr Vanderkley on the grounds that he did not have a particular kind of industrial instrument with his employees, in contravention of s45(1)(a)(i) of the Building and Construction Industry Improvement Act 2005 (BCII Act); and
- discriminated against Mr Vanderkley on the grounds that he did not have a workplace agreement with a particular person, being the CFMEU, in contravention of s45(1)(a)(ii) of the BCII Act.
ABCC proceeding
- The ABCC filed proceedings in the Federal Court at Melbourne on 24 June 2008. The first directions hearing is scheduled for 9.30am on 1 August 2008.
Maximum penalties
- The maximum penalty for each breach by a corporation of the BCII Act is $110,000.